Case ID: 730

Judgment:
Appeal No. 108 of 1959. Appeal from the judgment and order dated November 25	 1958	 of the Punjab High Court in F.A.0. No. 173 of 1958. A. V. Viswanatha Sastri and Naunit Lal	 for the appellant. M. C. Setalvad	 Attorney General for India	 V. A. Syed Mohammad and M. K. Ramamurthi	 for respondent No. 1. R. H. Dhebar	 for respondent No. 3. 1959. April 23	 The Judgment of the Court was delivered by 750 SINHA	 J. When the hearing of the appeal had been concluded on March 18	 1959	 we had informed the parties	 as also the counsel for the Election Commission of India	 that the appeal is dismissed with costs	 and that the reasons would follow. We now proceed to give our reasons. This is an appeal on a certificate of fitness granted by the High Court of Judicature for the State of Punjab at Chandigarh	 against the judgment and order dated November 25	 1958	 of that Court	 dismissing an appeal against the order of the Election Tribunal	 Hissar	 dated September 14	 1958	 setting aside the appellant 's election to the Punjab Legislative Assembly. The appellant was the successful candidate from the general seat which was a double member constituency of Sirsa	 the other successful candidate being a Harijan candidate respondent No. 2 in this Court. The first respondent contested the general seat. The Election Commission of India was added as the third respondent by an order of this Court	 dated February 27	 1959	 when this Court was moved in the stay matter. This Court directed the case itself to be heard before the date fixed for the fresh election as a result of the order of the Election Tribunal. It appears that for the double member constituency of Sirsa	 there were a large number of candidates. One of the two seats was reserved for members of the scheduled castes. After the usual withdrawals	 sixteen candidates were left in the field to contest the two seats	 eight candidates being for the general seat	 and the other eight	 for the reserved seat. We are not here concerned with the seat reserved for members of the scheduled castes. In respect of the general constituency	 the appellant secured 27	272 votes	 whereas the first respondent secured 23	329	 as a result of the election which took place on March 12 and 14	 1957. The result of the election was declared on March 17	 1957. The first respondent filed an election petition on April 289 1957	 challenging the election of the appellant. The election was challenged on a large number of grounds practically exhausting all available 751 grounds under the election law but as a result of the findings of the Election Tribunal and of the High Court	 we are only concerned with the allegations relating to " corrupt practices "	 contained in sub paras. I to 3 of para. 13B of the election petition	 which formed the basis for issue No. 4. The relevant allegations may be stated in extenso in the words of the election petition	 as under: " (B) : That respondent No. I himself	 his agents and other persons with the consent of the respondent No. 1 and his agents have committed the corrupt practice of undue influence by interfering directly or indirectly with the free exercise of the electoral right of the 'electors of this constituency. The known details of these corrupt practices are given in the various clauses under the sub para. : (1) Sat Guru Maharaj Pratap Singh of Jiwan Nagar	 the religious head of Namdharis sect of the Sikhs had some personal grievances against Shri Devi Lal of Chautala a prominent Congress Leader of the constituency	 and the chief supporter of the petitioner at this election. Respondent No. 1 fully knowing of this grievance of the Sat Guru approached him and through him also approached Maharaj Charan Singh of Sikanderpur the religious head of the Radha Swaini Samaj and got issued Farmans (orders) by both these religious heads to their followers in this constituency to the effect that their Dharma required them to wholeheartedly support respondent No. 1 and to oppose the candidature of the petitioner and that if any of the followers dared to act against their Farmans	 the wrath of the aforementioned Gurus would fall upon him and he would be the object of Divine displeasure. These Farmans of the two Gurus were orally conveyed	 through the 'Subas ' of Namdharis	 Shri Bir Singh the son of Sat Guru Partap Singh and Naginder Singh and Shri Purshotam Singh followers of Guru Charan Singh	 throughout the Constituency wherever the followers of these two sects resided from the day of withdrawal till the polling began	 during their canvassing tours for respondent No. 1	 Shri Bir Singh	 Purshotam Singh and Naginder Singh aforesaid and Sant Teja 752 Singh M.L.C. in Diwans held in the various villages and towns of the Constituency during their canvassing tour	 besides repeating these 'Farmans ' of the two Gurus also threatened the followers with expulsion from the sect and Samaj if they went against the wish of the Gurus in this matter. (ii) That Sat Guru Pratap Singh himself in the presence of respondent No. 1 in the Big Diwan of his followers held on the 25th of February	 1957	 at Sirsa in Radha Swami Sat Sangh Hall	 preached and commended all those present that it was the primary Dharma of all his followers to help the candidature of respondent No. 1 and to oppose the petitioner with all their might by giving their own votes and by canvassing among their area of influence in the constituency: The Sat Guru himself held Diwans at villages Tharaj on	 the 6th of March	 1957	 at village Dhiwan on the 5th March	 1957	 at village Rori on the 6th March	 1957	 and at Phaggu on the 6th March	 1957. In these Diwans he besides repeating his Farmans aforesaid also relied upon the strong appeal of his relationship	 he being the son of the daughter of village Tharaj. A very big diwan of his followers also hold at Khairpur on the 26th February	 1957	 for the same purpose where the Sat Guru himself commended his followers in the like tune. (iii) That respondent No. 1 got issued posters in thousands printed on both the sides in Hindi and Gurumukhi scripts on the 26th of February	 1957	 containing the orders 'Farmans ' of Satguru Partap Singh under the signature of Shri Maharaj Bir Singh son of Satguru Partap Singh. These posters were got published at the instance of respondent No. 1 at Bansal Press Hissaria Bazar	 Sirsa. These posters contained in verbatim the orders 'Farmans ' of the Satguru to the effect that it was the primary Dharma of every Namdhari of this constituency to give his own vote as well as to canvass votes of their all acquaintances for Shri Ram Dayal candidate respondent No. 1. A copy of the poster in original together with its English translation is attached with the petition and may be read as to form its part. These posters were distributed 753 throughout the constituency after the same were got printed till the polling day in all the villages where Namdhari reside." In support of all his allegations quoted above	 the first respondent adduced a large volume of oral evidence	 besides some documentary evidence as well. The Tribunal came to the conclusion that Maharaj Pratap Singh had issued farmans to his satsanghis that he	 who will not vote for the appellant	 would suffer not only in this world but in the next also	 but it found it not proved that the farmans or orders of the two religious heads of the Namdharis and Radhaswamis	 were orally conveyed through Maharaj Bir Singh	 son of Maharaj Partap Singh	 Naginder Singh and Shri Purshotam Singh	 to the followers of the two Gurus in the constituency	 or that they	 while conveying the farmans of the Gurus	 threatened the followers with expulsion from the sect	 if they went against the wishes of the Gurus	 except what Naginder Singh had said in the Diwan at Sirsa and at other places. It also recorded the finding that the Diwans were held for the purpose of canvassing in favour of the appellant at the time and place mentioned in the petition	 and that those Diwans were addressed by Maharaj Partap Singh and others. It was also found that Maharaj Partap Singh actively supported the candidature of the appellant	 and addressed his followers on the basis of religion and asked them to vote for the appellant	 and that all this was done at the instance and in the presence of the appellant. It was further found that posters	 like exh. P. 1	 were issued by the appellant under the authority of Maharaj Bir Singh and his father	 Maharaj Partap Singh	 and widely distributed throughout the constituency. The Tribunal also discussed the question as to whether	 on those findings	 the provisions of section 123(2) of the Representation of the People Act	 1951 (which will hereinafter be referred to as I the Act ')	 relating to "undue influence "	 could be said to have been satisfied; and alternatively	 whether those findings would bring the case within the provisions of cl. (3) of section 123 of the Act	 95 754 relating to systematic appeal on grounds of caste	 race	 community or religion	 etc. The Tribunal appeared to be inclined to the view that a command in terms of exh. P. 1	 emanating from a religious head	 like the Sat Guru	 to his followers mostly illiterate and ignorant persons may well be construed as " undue influence". But alternatively	 it also held that even if the provisions of cl. (2) of section 123 of the Act	 had not been satisfied	 the case had been brought well within the purview of el. (3) of section 123. Other issues were either not pressed or were decided against the petitioner in that court. The Tribunal	 therefore	 declared the appellant 's election void under section 100(1)(b) of the Act. In view of the fact that the petitioner had failed to substantiate many of his allegations	 the Tribunal directed the parties to bear their own costs. The appellant preferred an appeal which was heard by a Division Bench (Falshaw and Dua	 JJ.) of the High Court of Judicature for the State Of Punjab at Chandigarh. The High Court substantially affirmed the findings of the Election Tribunal on issue No. 4 aforesaid. The High Court also accepted the oral evidence adduced on behalf of the respondent	with particular reference. to the publication and wide distribution of the poster	 exh. In the course of its judgment	 the High Court observed: " The language of the mandate and the general background and circumstances of this case including the obvious consciousness of Maharaj Pratap Singh and Ram Dial of the probable and likely effect of such commands on the illiterate	 ignorant and credulous followers of the Maharaj can lead but to one conclusion that it was intended to convey to them. the threat of divine displeasure and spiritual censure if they dared to disobey the farman of their supreme spiritual and religious head. " In answer to the contention that the farman had been motivated not by religious considerations but by a personal grievance	 the High Court did not attach any importance to the alleged difference in the motive	 and observed: If the influence exercised by the religious and 755 spiritual head has the effect of creating in the minds of the voters a feeling of divine displeasure or spiritual censure then whatever the motive	 the influence would amount to undue influence. The contents of the poster reproduced earlier unequivocally establish the mandatory nature of the command. Religious sanction is	 in my opinion	 implict in it and I think	 on a reasonable construction of its contents	 it must be held that Maharaj Pratap Singh intended to convey to his followers who are mostly illiterate	 ignorant	 credulous and unsophisticated villagers	 having blind and implicit faith in their religious head that if they did not vote for Ram Dial	 they would incur divine dis pleasure and spiritual censure. With this class of villagers the displeasure of the religious head is usually associated with divine displeasure. " Dealing with the scope of section 123(2)	 it held that the language of the poster	 exh. P. 1	 construed in the light of the oral evidence	 left the Court in no doubt that Maharaj Partap Singh 's farman did necessarily imply divine displeasure and spiritual censure for those who chose to disobey the farman. In its view	 therefore	 the facts	 as found	 attracted the provisions of section 123(2) of the Act. It also held that the evidence led in the case	 established that the meetings addressed by Maharaj Partap Singh and others	 in support of the election of the appellant	 induced the belief that the voters would incur divine displeasure or spiritual censure if they did not vote in accordance with the mandate issued by the Maharaj	 thus	 clearly establish ing the commission of corrupt practice of " undue influence ". The High Court also examined the question whether the corrupt practice falling under cl. (3) of section 123 of the Act	 had been established	 and decided the question in the negative	 though not without some hesitation. It further held that the publication of the poster	 exh. P. 2	 did not bring the case within the purview of section 123(4) of the Act. In the result	 the High Court agreed with the conclusion of the Tribunal	 declaring the election void	 and dismissed the appeal with costs. The appellant applied to the High Court	 praying for the necessary certificate that the 756 case was a fit one for appeal to this Court	 and that Court granted the certificate. Hence	 this appeal. After the decision of the Tribunal and of the High Court	 the only question for determination in this appeal	 is whether	 on the findings of fact recorded	 as stated above	 the corrupt practice of " undue influence "	 as defined in section 123(2)	 has been made out. It has been argued on behalf of the appellant that the main cl. (2) of section 123	 is out of the way of the parties in this case	 because it applies only to threats of injury to person	 or property and not to what may be termed " spiritual undue influence "	 which is specifically covered by sub el. (ii) of proviso (a) to cl. (2) of section 123. It was further argued that the word " deemed " would show that the proviso is by way of an addition to the main provision of el. (2) of section 123; that is to say	 what was not actually covered by the main cl. (2)	 has been added to the ambit of the definition by the proviso. It has further been argued that el. (2) is directed against unduly influencing individual voters	 and reliance was placed upon the cases of Cheltenham(1)	 Nottingham (2) and North Durham Reference was also made to the observations in Rogers on Elections " (4)	 and it was argued that anelectoral right	 as defined in section 79(d) of the Act	 is a personal individual right	 including the right to vote or to refrain from voting at an election. Hence	 there should have been pleading by the petitioner and finding by the Court on evidence that certain named individuals had been subjected to the corrupt practice of undue influence. Secondly	 in the absence of any such pleading or finding	 a general allegation of the corrupt practice of undue influence	 without reference to individuals	 is not enough in law to vitiate an election. The corrupt practice of undue influence has been defined in el. (2) of section 123 of the Act	 in these terms : " (2) Undue influence	 that is to say	 any direct or indirect interference or attempt to interfere on the part of the candidate or his agent	 or of any other (1) 	 64. (2) 	 246	 (3) 	 156. (4) Vol.	 II 20th Ed.	 P. 329. 757 person	 with the consent of a candidate or his election agent	 with the free exercise of any electoral right: Provided that (a)without prejudice to the generality of the provisions of this clause any such person as is referred to therein who (i)threatens any candidate	 or any elector	 or any person in whom a candidate or an elector is interested	 with injury of any kind including social ostracism and excommunication or expulsion from any caste or community ; or (ii)induces or attempts to induce a candidate or an elector to believe that he	 or any person in whom he is interested	 will become or will be rendered an object of divine displeasure or spiritual censure	 shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause; (b)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 clause It should be observed	 at the outset	 that the law in England	 relating to undue influence at elections	 is not the same as the law in India	 as will appear from the following definition of " undue influence " contained in section 2 of 46 & 47 Vict. c. 51	 which substantially re enacted the former section 5 of 17 & 18 Viet. c. 102: " Every person who shall directly or indirectly	 by himself or by any other person on his behalf	. make use of or threaten to make use of any force	 violence	 or restraint	 or inflict or threaten to inflict	 by himself or by any other person	 any temporal or spiritual injury	 damage	 harm	 or loss upon or against any person in order to induce or compel such person to vote or refrain from voting	 or on account of such person having voted or refrained from voting at any election	 or who shall by abduction	 duress	 or any fraudulent device or contrivance	 impede or prevent the free exercise of the franchise of any elector	 or shall thereby compel	 induce	 or prevail upon any 758 elector either to give or to refrain from giving his vote at any election	 shall be guilty of undue influence". The words of the English statute	 quoted above	 lay emphasis upon the individual aspect of the exercise of undue influence. It was with reference to the words of that statute	 that Bramwell	 B.	 made the following observations in North Durham (1): " When the language of the Act is examined it will be found that intimidation to be within the statute must be intimidation practised upon an individual ". The Indian law	 on the other hand	 does not emphasise the individual aspect of the exercise of such influence	 but pays regard to the use of such influence as has the tendency to bring about the result contemplated in the clause. What is material under the Indian law	 is not the actual effect produced	 but the doing of such acts as are calculated to interfere with the free exercise of any electoral right. Decisions of the English Courts	 based on the words of the English statute	 which are not strictly in pari materia with the words of the Indian statute	 cannot	 therefore	 be used as precedents in this country. In the present case	 we are not concerned with the. threat of temporal injury	 damage or harm. On the pleadings and on the findings of the Tribunal and of the High Court	 we are concerned with the undue exercise of spiritual influence which has been found by the High Court to have been such a potent influence as to induce in the electors the belief that they will be rendered objects of divine displeasure or spiritual censure if they did not carry out the command of their spiritual head. It was argued that exh. P. 1	 on which so much stress was laid by the Tribunal and by the High Court	 did not contain any such direct threat as would bring the case within the second paragraph of proviso (a) to section 123(2). Exhibit P. 1	 as officially translated	 is in these terms: " A command from Shri Sat Guru Sacha Padshah to the Namdharies of Halqa Sirsa " Every Namdhari of this Halqa is commanded by Shri Sat Guru that he should make every effort for (1) 	156. 759 the success of Shri Ram Dayal Vaid	 a candidate for the Punjab Vidhan Sabha	 by giving his own vote and those of his friends and acquaintances	 it being our primary duty to make him successful in the election. The election symbol of Shri Vaid is a riding horseman. Maharaj Bir Singh S/o Sat Guru Maharaj Partap Singh	 Jivan Nagar (Hissar) ". We have looked into the original document also	 and we agree with the High Court that the crucial words	 like hukam of Shri Sat Guru Sacha Padshah	 etc.	 have been printed in very bold letters	 conveying the distinct impression to the large number of Namdharis	 who are voters in the constituency	 that it was a mandate from their spiritual guru who wielded great local influence amongst them	 that it was their bounden duty	 under the strict orders of their religious leader	 not only to cast their own votes in favour of the particular candidate	 but also to exert their influence amongst their friends and acquaintances in favour of that candidate; and that any infringement of that mandate had implicit in it divine displeasure or spiritual censure. It was contended on behalf of the appellant that a religious leader has as much the right to freedom of speech as any other citizen	 and that	 therefore	 his exhortation in favour of a particular candidate should not have the result of vitiating the election. There cannot be the least doubt that a religious leader has the right freely to express his opinion on the comparative merits of the contesting candidate and to canvass for such of them as he considers worthy of the confidence of the electors. In other words	 the religious leader has a right to exercise his influence in favour of any particular candidate by voting for him and by canvassing votes of others for him. He has a right to express his opinion on the individual merits of the candidates. Such a course of conduct on his part	 will only be a use of his great influence amongst a particular section of the voters in the constituency ; but it will amount to an abuse of his great influence if 760 the words he uses in a document	 or utters in his speeches	 leave no choice to the persons addressed by him	 in the exercise of their electoral rights. If the religious head had said that he preferred the appellant to the other candidate	 because	 in his opinion	 he was more worthy of the confidence of the electors for certain reasons good	 bad or indifferent	 and addressed words to that effect to persons who were amenable to his influence	 he would be within his 'rights	 and his influence	 however great	 could not be said to have been misused. But in the instant case	 as it appears	 according to the findings of the High Court	 in agreement with the Tribunal	 that the religious leader practically left no free choice to the Namdhari electors	 not only by issuing the hukam or farman	 as contained in exh. P. 1	 quoted above	 but also by his speeches	 to the effect that they must vote for the appellant	 implying that disobedience of his mandate would carry divine displeasure or spiritual censure	 the case is clearly brought within the purview of the second paragraph of the proviso to section 123(2) of the Act. This aspect of the case has been dealt with at length by the High Court in a well considered judgment	 and we do not think it necessary to repeat all those obser vations	 beyond saying that we agree with them. In that view of the matter	 it is not necessary for us to consider the further question whether el. 2 of section 123 of the Act	 apart from the proviso para. (ii)	 discussed above covers a case	 like the present	 where the undue influence is of a spiritual character as distinguished from threats of injury to person or property. As the main ground urged in support of the appeal against the judgment of the High Court	 fails	 the appeal must be dismissed with costs to the respondent No. 1. Appeal dismissed.

Summary:
This appeal was directed against concurrent orders of the Election Tribunal and the High Court on appeal	 setting aside the appellant 's election to the Punjab Legislative Assembly on an election petition filed by the respondent No. 1	 on the ground of corrupt practice of undue influence within the meaning of proviso (a)(ii) to section 123(2) of the Representation of the People Act	 951. A large number of voters of the constituency were Namdhari Sikhs and the appellant	 under the authority of the supreme religious leader of the Namdhari Sikhs and his son	 issued the following poster and distributed it widely throughout the constituency	 749 "A command from Shri Sat Guru Sacha Padshah to the Naindharies of Halqa Sirsa". "Every Namdhari of this Halqa is commanded by Shri Sat Guru that he should make every effort for the success of Shri Ram Dayal Vaid	 a candidate for the Punjab Vidhan Sabha	 by giving his own vote and those of his friends and acquaintances	 it being our primary duty to make him successful in the election. The election symbol of Shri Vaid is a riding horseman. Maharaj Bir Singh S/o. Sat Guru Maharaj Pratap Singh	 Jiwan Nagar (Hissar). " Both the Tribunal and the High Court found that the reli gious leader not only issued the said hukam or command	 but also delivered speeches to the effect that every Namdhari must vote for the appellant implying that disobedience of his mandate would carry divine displeasure or spiritual censure and practically left no free choice to the Namdhari electors. Held	 that the case clearly fell within the purview of pro viso (a)(ii) to section 123(2) Of the Representation of the People Act and the appeal must be dismissed. The law in England relating to undue influence at elections	 was not the same as the law in India. While the law in England laid emphasis upon the individual aspect of the exercise of undue influence	 under the Indian law what was material was not the actual effect produced but the doing of such acts as were calculated to interfere with the free exercise of an electoral North Durham 's case	 	 referred to. Decisions of the English Courts in this regard	 therefore	 could not be used as precedents in India.