Shah, J.

1. At the general elections held in February 1962 five candidates contested the election to the House of the People from the Jhajjar parliamentary constituency. On February 27, 1962 the appellant Jagdev Singh Sidhanti was declared elected. Pratap Singh Daulta who was one of the candidates at the election then filed a petition with the Election Commission praying, inter alia, that the election of the appellant be declared void on the ground that the appellant - Sidhanti - his agents and other persons with his consent, had committed certain corrupt practices in connection with the election. Daulta stated that the appellant Sidhanti was set up as a candidate to contest the election by the Hariana . Lok Samiti; that the appellant and six other persons - Piare Lal Bhajnik, Ch. Badlu Ram, Pt. Budh Dev, Prof. Sher Singh Mahashe Bharat Singh and Acharya Bhagwan Dev who were leaders and active workers of the GuruKul Section of the Arya Samaj had organised a political movement called "the Hindi agitation" in 1957 the real object of which was to promote feelings of enmity and hatred between the Sikh and Hindu communities in the State of Punjab "on the ground of religion and language" to promote their prospects in the general elections to be held in 1962, and for that purpose they held meetings in the Hariana region of the Punjab and appealed to the electorate to vote for Sidhanti "on the ground of his religion and language", and used a religious symbol - flag called "Om Dhwaj" in all these meetings, that the appellant himself made similar appeals to the electorate and appealed to them to refrain from voting for Daulta who was a sitting member of the House of the People from the constituency stating that he - Daulta - was an enemy of the Arya Samaj and of the Hindi language, that during the election campaign fifteen meetings were held between December 10, 1961 and February 18, 1962 and at all these meetings appeals were made to the electorate on the ground of religion and language of Sidhanti,. and attempts were made to promote feelings of enmity and hatred between Sikhs and Hindus of the Punjab. Allegations about undue influence on the voters in the exercise of their free electoral right were also made in the petition, and details of these alleged corrupt practices were furnished in the schedule annexed to the petition.

2. Sidhanti denied that the six persons who were named as his agents and supporters ever acted as his agents in his election campaign and submitted that they were merely interested in the success of the candidates set up by the Hariana Lok Samiti and acted throughout "on their own and not as his agents". He also submitted that the Hariana Lok Samiti had no connection with the Arya Samaj, it being a political organization started by Prof. Sher Singh who was an important political leader in the Hariana region. Sidhanti admitted that he had participated in the meetings to canvass votes, but claimed that he was not responsible for convening the meetings or for the speeches made by others in those meetings, that the Om flag was not a religious symbol and denied that it was used on any occasion by him or his agents or the six persons named by Daulta in his petition, except Bhagwan Dev who was accustomed "throughout his career" to carry a pennant with "Om" and his own name inscribed thereon on his motor vehicle, but carrying of such a flag or pennant on Bhagwan Devs vehicle during the election was not with his (Sidhantis) consent and that it did not amount to commission of a corrupt practice as defined in the Act, that the residents of Hariana area were mainly Hindispeaking, but the Government of Punjab had made Punjabi language in Gurmukhi script a compulsory subject at various levels of school education and this gave rise to a wide-spread agitation against the policy of Government, that to resist the implementation of the policy and the programme of the Government in the administrative, economic and developmental spheres and to mitigate the hardships of the residents of the Hariana region and to secure redress of their grievances the Hariana Lok Samiti was formed, and an appeal to the electorate to secure a reversal of the policies and programme of the Government was not, it was submitted, an appeal on the ground of language or religion and did not amount to a corrupt practice within the meaning of S.123 of the Representation of the People Act, 1951.

3. The Tribunal held, inter alia, that the "Om flag" was not a "religious symbol" of the Arya Samaj, that no satisfactory proof was adduced that Om flag had been used as a symbol of Arya Samaj or that an appeal to secure votes with the aid of the flag was made to the electorate by Sidhanti or by any one else with his consent, that there was no satisfactory evidence to establish that appeals were made to the electorate to vote for Sidhanti or to refrain from voting for the other candidates on the ground of religion or language, and that the applicant Daulta failed to prove that an appeal on the ground of caste, community or religion or language had been made to the electorate to further the prospects of Sidhanti or to prejudicially affect the election of the other candidates. On these, and findings recorded on other issues not material in this appeal, the petition filed by Daulta was dismissed by the Election Tribunal.

4. Daulta preferred an appeal against that order to the High Court of Judicature for Punjab. The High Court held that the word "Om" is a religious symbol of the Hindus in general and of the Hindus belonging to the section known as Arya Samaj in particular and that the flag bearing the inscription "Om" is a religious symbol, that "Om Dhwaj" was flown during the election campaign on the election offices of the Hariana Lok Samiti Especially at Sampla and Rohtak, that the Samiti office was used by Sidhanti for his election campaign, that Hariana Lok Samiti was generally using the "Om Dhwaj"to further the prospects of its candidates, that out of the agents and supporters of Sidhanti "Bharat Singh at least once and Bhagwan Dev invariably used" the Om flag on their vehicles while attending the meetings convened by the Hariana Lok Samiti in furtherance of the election campaign of Sidhanti, that the Om flag was flying "on the pandal of the meeting" held at Majra Dubaldhan on January 19, 1962 when Sidhanti and his agents and supporters delivered speeches in support of the election campaign and that at the meeting held at Rohtak town, Piare Lal Bhajnik sang a song in the presence of Sidhanti the purport of which was that the honour of the Om flag should he upheld, that Bhagwan Dev was using the Om flag with the consent of Sidhanti and that Piare Lal Bhajnik at the Rohtak town meeting also sang the song in honour of the Om flag with the consent of Sidhanti. The High Court further held that the appellant has delivered speeches at Majra Dhubaldhan in the pandal on which the Om flag was flying, that as even an isolated act of the use of or appeal to the Om flag may constitute a corrupt practice under S.123 (3) that corrupt practice by Sidhanti and his agents and by his supporters with his consent was established. The High Court also held that Sidhanti had appealed for votes on the ground of his language and had asked the electorate to refrain from voting for Daulta on the ground of the language of the latter, and such appeals constituted a corrupt practice. The High Court accordingly allowed the appeal and declared the election of Sidhanti void under S. 100(1)(b) of the Act. Against the order this appeal is preferred with certificate granted by the High Court.

5. Two principal questions which survive for determination in this appeal are :

(1) Whether a religious symbol was used in the course of election by the appellant, his agents or other persons with his consent in furtherance of the prospects of his election; and

(2). Whether appeals were made to the electorate by Sidhanti, his agents or other persons with his consent to vote in his favour on account of his language and to refrain from voting in favour of Daulta on the ground of his language.

In order to appreciate the plea raised by counsel for the parties and their bearing on the evidence it may be useful to refer to the political background in the Hariana region, and the constituency in particular, in which corrupt practices are alleged to have been committed. The territory of the State of Punjab is divided into two regions,- The Hindi-speaking region, and the Punjabi-speaking region. The Hindi-speaking region is very largely populated by Hindus, while in the Punjabi speaking region the population is approximately equally divided between the Hindus and Sikhs. In the Punjab before the partition Urdu and English were the two official languages. After the partition a controversy about the official language arose. The Government of Punjab decided to replace Urdu and English by Hindi in a Hindi-speaking region and Punjabi in the Punjabi-speaking region, and for that purpose a scheme called the Sachar formula was devised, the salient feature of which was that every student, reading in the Punjab schools by the time he passed his matriculation examination should be proficient both in Hindi and Pujabi. Under the, scheme two Regional Committees were formed one known as the Hindi Regional Committee and the other the Punjabi Regional Committee. The function of the Committees was to advise the local Government in matters of finance and other related matters. There was great resentment against the formation of the Regional Committees and the implementation of the Sachar Formula which resulted in the launching of a movement called "the Hindi agitation". The agitation against the language policy of the Government gained strength and there was a great mass movement in 1957 in the entire State of Punjab in the last week of December 1957 there was a settlement between the organisers of the movement and the State Government and the movement was called off. It appears that some of the leading figures in this agitation attempted to make political capital out of this movement and set themselves up as probable candidates for the next election.

6. In the Arya Samaj in the Punjab there are two major sections, one called the Gurukul Section and the other called the College Section. The Gurukul Section is again divided into the Hariana Section and the Mahashe Krishna Section. It is the case of Daulta that it is the Gurukul Section of the Arya Samaj relying upon the religious and linguistic differences which sought to make at the time of the election, appeals to religion and use of religious symbols. As we have already observed, Daulta challenged the election on the ground that Sidhanti, his election and other agents committed many corrupt practices. Before the Tribunal he restricted his case to the corrupt practices falling within Cls.(2), (3) and (3A) of S.123 of the Representation of the People Act, 1951. His plea of undue influence falling within cl.(2) failed before the Tribunal and also before the High Court and it has not been relied upon before us. Similarly his plea that Sidhanti his election and other agents had promoted or attempted to promote, feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community, or language was negatived by the Tribunal and also by the High Court and that plea also does not fall to be determined by us. Daulta had also alleged that appeals were made by Sidhanti and his election and other agents, to the electorate to vote for him or refrain from voting for Daulta on the ground of his Sidhantis - religion and language and that Sidhanti and his agents used and appealed to religious symbols such as the Om flag for the furtherance of the prospects of the election of Sidhanti and for prejudicially affecting the election of Daulta. It is on the last question about the use of and appeal to religious symbols and appeal to the language of the two candidates for the furtherance of the prospects of the election of Sidhanti that the Tribunal and the High Court have differed.

7. It may be useful to refer to the relevant provisions of the Act, before dealing with the matters in dispute. Section 100 (1) sets but the grounds on which an election may be declared void. In so far as that section is material in the present appeal, it provides:-

"Subject to the provisions of sub-section (2) if the Tribunal is of opinion-

(a) x x x x x

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent;

(c) x x x x x x x

(d) x x x x x x x

the tribunal shall declare the election of the returned candidate to be void."

8. By sub-s. (2) if in the opinion of the Tribunal, a returned candidate has been found guilty by an agent, other than his election agent, of any corrupt practice but the Tribunal is satisfied -

(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders and without the consent of the candidate or his election agent ;

(b) x x x x

(c) That the candidate and his election agent took all reasonable means for preventing the commission of corrupt practice at the election; and

(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agent, the Tribunal may decide that the election of the returned candidate is not void. Section 123 sets out what shall be deemed to be corrupt practices for the purpose of the Act. Clause (3) as amended by Act 40 of 1961, which alone is material in this appeal, provides :-

"The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. "

The clause falls into two parts (i) an appeal by a candidate, his agents or by other persons with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language; and (ii) use of or appeal to religious symbols, national symbols or national emblems for the furtherance of the prospects of the election of the candidate or for prejudicially affecting the election of any candidate. The first part in terms makes it a condition that the appeal is made by a candidate or his agent or any other person with the consent of the candidate or his agent. There is no reference in the second part to the person by whom the use of, or appeal to the religious or the national symbols, such as the national flag or the national emblem may be made, if such use of or appeal to them has been made to further the prospects of the election of the candidate or to prejudicially affect the election of any candidate. But it is implicit in S. 123 (8), having regard to the terms of S. 100, that the use of or appeal to the national or religious symbols must be made by the candidate or his election agent or by some other person with the consent of the candidate or the election agent, before it can be regarded as a ground for declaring the election void. If the evidence on the record fails to establish the responsibility for the use of or appeal to the religious or national symbols by the returned candidate or by his election agent or by any other person with his consent or his election agent, no ground for setting aside the election may be deemed to be made out.

9. The first question to which we must then turn is, whether the "Om flag" can be regarded as a "religious symbol" within the meaning of S. 123 (3). This question has to be examined in two branches (i) whether the word "Om" has any special religious significance, and (ii) whether the use of "Om" on a flag or pennant makes it a religious symbol. If the respondent Daulta establishes that the "Om flag" is a religious symbol the question will arise whether the use of or appeal to the Om flag was made in the election campaign for furtherance of his prospects by Sidhanti or by his agents or other persons with his consent or the consent of his election agent.

10. The expression "Om" is respected by the Hindus generally and has a special significance in the Hindu scriptures. It is recited at the commencement of the recitations of Hindu religious works, Macdonell in his "A practical Sanskrit Dictionary" states that "Om" is the sacred syllable used in invocations, at the commencement of prayers, at the beginning and the end of Vedic recitation, and as a respectful salutation; it is a subject of many mystical speculations. In the Sanskrit-English Dictionary by Monier-William it is said that "Om" is a sacred exclamation which may be uttered at the beginning and end of a reading of the Vedas or previously to any prayer; it is also regarded as a particle of auspicious salutation. But it is difficult to regard "Om" which is a preliminary to an incantation or to religious books, as having religious significance. "Om" it may be admitted is regarded as having high spiritual or mystical efficacy; it is used at the commencement of the recitations of religious prayers. But the attribute of spiritual significance will not necessarily impart to its use on a flag the character of a religious symbol in the context in which the expression religious symbol occurs in the section with which we are concerned. A symbol stands for or represents something material or abstract in order to be a religious symbol, there must be a visible representation of a thing or concept which is religious. To Om high spiritual or mystical efficacy is undoubtedly ascribed; but its use on a flag does not symbolise religion, or anything religious.

11. It is not easy therefore to see how the Om flag which merely is a pennant on which is printed the word Om can be called a religious symbol. But assuming that the Om flag may be regarded as a religious symbol, the evidence on the record is not sufficient to establish that by Sidhanti, his election agents or any other person with his consent or the consent of his election agent. Om flag was used or exhibited, or an appeal was made by the use of the Om flag to further the prospects of Sidhanti at the election.

12. It may be remembered that in the trial of an election petition, the burden of proving that the election of a successful candidate is liable to be set aside on the plea that he was responsible directly or through his agents for corrupt practices at the election, lies heavily upon the applicant to establish his case, and unless it is established in both its branches i.e. the commission of acts which the law regards as corrupt, and the responsibility of the successful candidate directly or through his agents or with his consent for its practice not by mere preponderance of probability, but by cogent and reliable evidence beyond any reasonable doubt, the petition must fail. The evidence may be examined bearing this approach to the evidence in mind.

13-25. (After discussion of the evidence the judgment proceeds.)

On a careful survey of the testimony of the witnesses we are unable to agree with the conclusions recorded by the High Court that:

(a) Sidhanti "had used an office of the Hariana Lok Samiti on which the "Om flag" was flying for election purposes and further that he gave election speeches at a pandal where the Om flag was fluttering in furtherance of his prospects at the election. "

(b) "the agents and supporters delivered speeches about the "Om flag" at the meeting held at Majra Dubaldhan on January 19, 1962, that Piare Lal Bhajnik sang a song, the purport of which was that the honour of the Om flag should be upheld"; and

(c) "the Hariana Lok Samiti the party to which Sidhanti belonged, was using the Om flag for the purpose of election campaign", and thereby committed corrupt practices: It is true that the use of the Om flag by Bhagwan Dev on his conveyance is admitted but that again is for reasons already set out not sufficient to enable the Court to hold that it was for the purpose of furthering the prospects of election of Sidhanti.

26. In considering whether appeals were made to the electorate to vote for Sidhanti on the ground of his language or to refrain from voting for Daulta on the ground of Daultas language it is necessary in the first instance to ascertain the true meaning of the expression "on the ground of his language". By S. 123 (3) which was introduced for the first time in its present form by Act 40 of 1961, appeal by a candidate or his agent to vote or refrain from voting for a person on the ground of language is made a corrupt practice. This clause must be read in the light of the fundamental right which is guaranteed by Art. 29(1) of the Constitution, for in ascertaining the true meaning of the corrupt practice, the area of the fundamental right of citizen must be steadily kept in view. The clause cannot be so read as trespassing upon that fundamental right. Article 29 (1) provides :

"Any section of the citizen residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same."

The Constitution has thereby conferred the right, among others, to conserve their language upon the citizens of India. Right to conserve the language of the citizens includes the right to agitate for the protection of the language. Political agitation for conservation of the language of a section of the citizens cannot therefore be regarded as a corrupt practice within the meaning of S.123 (3) of the Representation of the People Act. That is clear from the phraseology used in S. 123 (3) which appears to have been deliberately and carefully chosen. Unlike Art.19(1), Art. 29(1) is not subject to any reasonable restrictions. The right conferred upon the section of the citizens residing in the territory of India or any part thereof to conserve their language, script or culture is made by the Constitution absolute and therefore the decision of this Court in Jumuna Prasad Mukhariya v. Lachhi Ram, 1955-1 SCR 608 [LQ/SC/1967/277] : (AIR 1954 SC 686 [LQ/SC/1954/119] ) on which reliance was placed by the High Court is not of much use. In that case Ss.123(3) and 124 (5) of the Representation of the People Act as they then stood were challenged as infringing the fundamental freedom under Art. 19(1)(a) of the Constitution, and the Court in negativing the contention held that the provisions of the Representation of the People Act did not stop a man from speaking; they merely prescribed conditions which must be observed if a candidate wanted to enter Parliament. The right to stand for an election is, it was observed, a special right created by statute and can only be exercised on the conditions laid down by the statute, and if a person wants to stand for an election he must observe the rules. These observations have no relevance to the protection of the fundamental right to conserve language. The corrupt practice defined by Cl. (3) of S.123 is committed when an appeal is made either to vote or refrain from voting on the ground of the candidates language. It is the appeal to the electorate on a ground personal to the candidate relating to his language which attracts the ban of S. 100 read with S. 123(3). Therefore it is only when the electors are asked to vote or not to vote because, of the particular language of the candidate that a corrupt practice may be deemed to be committed. Where however for conservation of language of the electorate appeals are made to the electorate and promises are given that steps would be taken to conserve that language, it will not amount to a corrupt practice.

27. It is in the light of these principles, the correctness of the findings of the High Court that Sidhanti was guilty of the corrupt practice of appealing for votes on the ground of his language and of asking the voters to refrain from voting for Daulta on the ground of the language of Daulta may be examined. The petition filed by Daulta on this part of the case was vague. In paragraph 11 of his petition it was averred that Sidhanti and his agents made a systematic appeal to the audience to vote for Sidhanti and refrain from voting for Daulta "on the ground of religion and language", and in paragraph 12 it was averred that in the public meetings held to further the prospects of Sidhanti in the election, Sidhanti and his agents had made systematic appeals to the elctorate to vote for him and refrain from voting for Daulta "on the ground of his religion and language". A bare perusal of the particulars of the corrupt practice so set out in paragraphs 11 and 12 are to be found in Schs.C and D clearly shows that it was the case of Daulta that Sidhanti had said that if the electorate wanted to protect their language they should vote for the Hariana Lok Samiti candidate. Similar exhortations are said to have been made by the other speakers at the various meetings. It is stated in Sch. D that resolutions were passed at the meetings urging upon the Government to "abolish Punjabi from Hariana", that many speakers said that the Hariana Lok Samiti will fight for Hindi for Hariana and that they were opposed to the teaching of Punjabi in Hariana. These exhortations to the electorate to induce the Government to change their language policy or that a political party will agitate for the protection of the language spoken by the residents of the Hariana area do not fall within the corrupt practices of appealing for votes on the ground of language of the candidate or to refrain from voting on the ground of language of the contesting candidate.

28. Speeches made at political meetings held for canvassing votes must be examined in the context of the atmosphere of a political campaign and the passions which are generally aroused in such a campaign. In adjudging whether an appeal is made to the language of the candidate, a meticulous examination of the text of the speech in the serene atmosphere of the Court room picking out a word here and a phrase there to make out an offending appeal to vote for or against a candidate on the ground of language would not be permissible. A general and overall picture of the speeches delivered by Sidhanti and other speakers at the meetings disclosed nothing more than a tale of political promises, exhortations and inducements to vote at the forthcoming election for Sidhanti.

29. It is not disputed that in 1957 there was a wide-spread agitation in the State of Punjab against the enforcement of the education policy of the State, incorporated in the "Sachar formula." Many persons were imprisoned or detained in the cause of the agitation for individual acts done by them. But the movement was not and could not be declared illegal. It is common ground that in the Hariana region Hindi is the predominant language of the people and if a section of the people thought that compelling the students in the Hariana region to learn Punjabi was not in their interest and in the election campaign such a view was advocated and votes were canvassed on the promise that the candidate if elected will take steps to conserve the language of the region, it would be difficult to hold that appeal as amounting to a corrupt practice. It is open to a candidate in the course of his election campaign to criticise the policies of the Government including its language policy and to make promises to the electorate that if elected he will secure a reversal of that policy or will take measures in the Legislature to undo the danger, real, apprehended or even fancied, to the language of the people. The object of the Hariana Lok Samiti was evidently to resist the imposition of Punjabi in the Hariana region and that object appears to have been made the platform in the election campaign. Thereby it could not be said that the voters were asked not to vote for Daulta on the ground of his language, assuming that it was other than Hindi. Nor can it be said that it was an appeal to the voters to vote for Sidhanti on the ground of his language.

30. The evidence which has been referred to by the High Court regarding the speeches made by Badlu Ram and Harphul Singh on December 10, 1961, at Beri on the face of it shows that the speeches were an attack against Daulta in respect of his political conduct, behaviour and beliefs. The speeches made at the meetings at Sampla, Ladpur and Majra Dabuldhan read like political harangues addressed to the electorate to vote for the candidate who would project the language of the people of Hariana. At Bahadugarh also Sidhanti is stated to have claimed that he was opposed to the Government and its supporter Daulta in the matter of the language movement. The evidence also showed that Sidhanti had appealed to the voters to vote for him because he was actively associated with the Hindi agitation movement and that he was championing the cause of Hindi and resisting the imposition of a rival language Punjabi and thereby suggesting that Daulta was hostile to the cause of Hindi language and was supporting the Punjabi language the criticism by Sidhanti in his appeal to the electorate related to the political leanings of Daulta, and his support to the policy of the Government and was not personally directed against him. Nor did Sidhanti appeal to the voters to vote in his favour on account of his language. Such political speeches exposing the cause of a particular language and making promises or asking the people to protest against the Government of the day in respect of its language policy is not a corrupt practice within the description of corrupt practice under S. 123(3) of the Act.

31. We are therefore unable to agree with the High Court that Sidhanti was guilty of any corrupt practice under S. 123(3) by appealing for votes on the ground of his language or by asking the voters to refrain from voting for Daulta on the ground of his language.

32. The appeal will therefore be allowed and the order passed by the Tribunal restored with costs in this Court and the High Court.

33. Appeal allowed.