Sikri, J.

1. This Court dismissed the above petitions and stated that reasons would be given later. We now proceed to give the reasons.

2. These four election petitions filed under Section 14 of the Presidential and Vice-Presidential Elections Act (XXXI of 1952) (hereinafter referred to as the Act), and Article 71 of the Constitution of India challenge the election of the respondent, Shri V. V. Giri, to the office of the President of India. The petitioner in Election Petition No. 1 of 1969, Shri Shiv Kirpal Singh, was a candidate in the election, and so was the petitioner in Election Petition No. 3, Shri Phul Singh. The nominations of both these petitioners were rejected by the Returning Officer. Election Petition No. 4 was filed by Shri N. Sri Rama Reddy, M. P., and twelve other electors, all members of Parliament. Election Petition No. 5 was filed by Shri Abdul Ghani Dar, M. P., and nine other member of Parliament and eight members of Legislative Assemblies of Haryana, Madhya Pradesh and Bihar. Shri V. V. Giri is the sole respondent in Election Petitions Nos. 1, 4 and 5 while in Election Petition No.3 he was impleaded as respondent No. 2 and Union of India through the Election Commission, was impleaded as respondent No. 1.

3. After the sad demise of the then President of India, Dr. Zakir Hussain, on May 3, 1969, the Election Commission issued a notification under S. 4 of the Act appointing July 24, 1969, as the last date for filing the nomination papers, July 26, 1969, as the date for scrutiny of the nomination papers, and July 29, 1969, as the last date for withdrawal of nomination papers. Polling was fixed for August 16, 1969. 24 nomination papers were filed before the Returning Officer. On scrutiny which took place on July 26, 1969, the Returning Officer rejected 9 nomination papers, including the nomination papers of Shri Shiv Kirpal Singh, petitioner in Election Petition No. 1, and Shri Phul Singh, petitioner in Election Petition No. 3. He accepted the nomination papers of 15 candidates. No candidate withdrew his nomination by the due date. Counting of votes took place on August 20, 1969, when the result was announced and the respondent, Shri V. V. Giri, was declared elected.

4. The election was sought to be challenged on various grounds in these election petitions. Some of these grounds were common. The grounds may be broadly formulated as follows :

(1) That the nomination papers of Shri Shiv Kirpal Singh, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly rejected by the Returning Officer;

(2) That the nomination papers of Shri V. V. Giri the respondent, were wrongly accepted by the Returning Officer;

(3) That the nomination papers of Shri Rajbhoj Pandurang Nathuji, Shri Santosh Singh Kachhwaha, Shri Babu Lal Mag and Shri Ram Dulare Tripathi were wrongly accepted by the Returning Officer;

(4) That Part III and Section 21 of the Act are ultra vires the Constitution;

(5) That Rules 4 and 6 (3) (a) of the Presidential and Vice-Presidential Election Rules, 1952 (hereinafter referred to as the Rules), promulgated under Section 21 of the Act, are ultra vires the Constitution and the Act;

(6) That the elected members of the Legislative Assemblies of the Union Territories were entitled to be included in the Electoral college for the election of the President and their wrongful non-inclusion had not only materially affected the result of the election but also violated Article 14 of the Constitution;

(7) That the petitioners were entitled to dispute the election even on grounds other than those mentioned in Section 18 of the Act ;

(8) That the offence of bribery at the election had been committed by the respondent and his supporters with his connivance; and

(9) That the result of the election had been materially affected by the commission of the offence of bribery by persons other than the respondent.

5. In addition to these allegations it was alleged that the offence of undue influence had been committed at the election with the connivance of the respondent. In any event the result of the election had been materially affected by the commission of this offence. We will elaborate the pleadings on this point when we come to deal with the issues arising out of that allegation.

6. We have read the judgment prepared by Bhargava, J. He has dealt fully with the issues arising out of the allegations other than the allegation of undue influence and, as we agree with him, it is not necessary to add anything to his reasoning. We may, however, reproduce the issues and the conclusions thereon.

Issue No. 5 of Election Petitions Nos. 1, 4 and 5/1969

E. P. No. 1 : Whether Section 21 of the Act is ultra vires the Constitution of India

E. P. Nos. 4 and 5 : Whether Part III and Section 21 of the Act are ultra vires the Constitution of India

We hold that Part III and Section 21 of the Act are not ultra vires the Constitution of India.

Issue No. 6 of Election Petitions Nos. 1, 4 and 5/69

E. P. Nos. 1, 4 and 5 : Whether Rules 4 and 6 (3) (e) of the Rules are ultra vires the Constitution and the rulemaking power of the Central Government

We hold that Rule 4 (3) of the Rules was validly made by the Government in exercise of its rule-making power under Section 21 of the Act. That rule being valid, Rule 6 (3) (e) of the Rules, which is consequential, must also be held to be valid.

Issue No. 1 in Election Petitions Nos. 1, 4 and 5/1969.

E. P. No. 1 : Whether the nomination papers of the petitioner, Charan Lal Sahu and Yogi Raj were wrongly rejected as alleged in paragraphs 5 (a) and (b), 6 and 7 of the petition

E. P. No. 4: Whether the nomination papers of Shiv Kirpal Singh, Charan Lal Sahu and Yogi Raj were wrongly rejected as alleged in paragraphs 8 (a) and 9 (a), (b) and (c) of the petition

E. P. No. 5: Whether the nomination papers of Shiv Kirpal Singh, Charan Lal Sahu and Yogi Raj were wrongly rejected as alleged in paragraphs 8 (a) and 9 of the petition

We hold that the nomination paper of Shri Shiv Kirpal Singh was rightly rejected on the ground that it was not accompanied by a certified copy of the entry relating to him in the electoral roll of the Parliamentary constituency in which he was registered as a voter. We further hold that the nomination paper of Sri Charan Lal Sahu was rightly rejected on the ground that he was not 35 years of age on the date of nomination. We also hold that the nomination paper of Shri Yogi Raj was rightly rejected on the ground that he had been proposed and seconded by the same electors who had proposed and seconded another candidate, Shri Rajbhoj Pandurang Nathuji, the nomination paper of the latter having been received earlier by the Returning Officer.

Issue No. 2 in Election Petition Nos. 1 and 5 and Issue No. 3 in Election Petition No. 4 of 1969.

E. P. No. 1: Whether the nomination papers of the respondent were wrongly accepted as alleged in paragraphs 5 (c) and 8 of the petition

E. P. No. 4: Whether the nomination papers of the respondent were wrongly accepted as alleged in paragraphs 8 (c) and 11 of the petition

E. P. No. 5: Whether the nomination papers of the respondent were wrongly accepted as alleged in paragraphs 8 (b) and 10 of the petition

We hold that nomination papers of the respondent were validly accepted. The certified copies of the electoral roll filed with the nomination papers were issued by the appropriate authority.

Issue No. 3 in E. Ps. Nos. 1 and 5 issue No. 2 in E. P. No. 4/1969.

E. P. No. 1: Whether the nomination papers of Rajbhoj Pandurang Nathuji and Babu Lal Mag were wrongly accepted as alleged in paragraphs 5 (b) and 9 of the petition

E. P. No. 4: Whether the nomination papers of Rajbhoj Pandurang Nathuji, Babu Lal Mag and Ram Dulare Tripathi were wrongly accepted as alleged in paragraphs 8 (b) and 10 (a), (b) and (c) of the petition

E. P. No. 5: Whether the nomination papers of Rajbhoj Pandurang Nathuji, Santosh Singh Kachhwaha, Babu Lal Mag and Ram Dulare Tripathi were wrongly accepted as alleged in paragraphs 8 (c) and 11 of the petition

We hold that the nomination paper of Shri Rajbhoj Pandurang Nathuji was validly accepted, the certified copy of the electoral roll filed by him was a valid and a good copy. We further hold that the nomination paper of Shri Santosh Singh Kachhwaha was not invalid even though he signed his nomination paper before his seconder had signed it. His nomination paper therefore, was rightly accepted. We further hold that the nomination paper of Shri Babu Lal Mag was not invalid even though he had signed his nomination paper before it was signed by the proposer and the seconder. His nomination paper was, therefore, rightly accepted. We further hold that the nomination paper of Shri Ram Dulare Tripathi was not invalid. The disputed signatures have not been shown to be not genuine.

Issue No. 4 in E. P. No. 1 and issue No. 7 in E. P. Nos. 4 and 5 of 1969.

(a) Whether the elected members of the Legislative Assemblies of the Union Territories were entitled to be included in the electoral college for the election of the President

(b) If so, whether the non-inclusion of the members of the Legislative Assemblies of the Union Territories in the electoral college amounts to non-compliance with the provisions of the Constitution If so, whether the result of the election has been materially affected by such non-compliance

(c) Whether the alleged non-compliance with the provisions of the Constitution has violated Article 14 of the Constitution

We hold that members of Legislatures created for Union Territories under Article 239 A cannot be held to be members of Legislative Assemblies of States. They were, therefore, rightly excluded from the electoral college. Issue No. 4 (a) in Election Petition No. 1 and Issues Nos. 7 (a) in Election Petitions Nos. 4 and 5 are accordingly decided against the petitioners. In view of this conclusion Issue No. 4 (b) and Issue No. 4 (c) of Election Petition No. 1 and Issues Nos. 7 (b) and (c) of Election Petitions Nos. 4 and 5 do not arise.

Issues Nos. 1 and 2 in Election Petition No. 3 of 1969.

1. Whether the nomination paper of Phul Singh, the petitioner, was wrongly rejected

2. What relief, if any, is the petitioner entitled to

We hold that the nomination paper of Shri Phul Singh was rightly rejected on the ground that his nomination paper was not signed either by a proposer or a seconder. Election Petition No. 3 of 1969 accordingly fails and is liable to be dismissed.

Issue No. 8 in Election Petitions Nos. 4 and 5/1969.

E. P. No. 4:

(a) Whether the petitioners are entitled to dispute the election of the respondent on grounds other than those mentioned in Section 18 of the Act

(b) If issue No. 8 (a) is decided in favour of the petitioners,

(i) whether the respondent or any person with his connivance printed, published and distributed the pamphlet, Annexure A-3, to the petition

(ii) Whether the pamphlet, at Annexure A-3, contained any false statement of facts relating to the personal character and conduct of N. Sanjiva Reddy, a candidate at the election and other persons named in the pamphlet

(iii) Whether the persons found responsible for publishing the pamphlet believed the statements made therein as true or had reason to believe them to be true

(iv) Whether the pamphlet was published with the object of prejudicing the prospects of the election of Sanjiva Reddy and furthering prospects of the election of the respondent

(v) Whether the election of the respondent is liable to be declared void on this ground

E. P. No. 5:

Issue No. 8 in Election Petition No. 5 is substantially the same except that the annexure in Petition No. 5 is Annexure A-38 and not Annexure A-3.

On the first part of Issue No. 8 we hold that the petitioners are not entitled to dispute the election of the respondent on grounds other than those mentioned in Sec. 18 of the Act The other parts of the issue, as a consequence, do not arise at all.

Issues Nos. 9, 9A and 10 in E. P. No. 5/1969.

9. Whether the respondent or any other person with his connivance committed the offence of bribery as alleged in paragraph 15 of the petition

9A. Whether the allegations in paragraph 15 constitute bribery within the meaning of the Act

10. Whether the offence of bribery was committed at the election by any other person without the connivance of the respondent as alleged in paragraph 15 of the petition, and if so, whether it materially affected the result of the election

We hold that no offence of bribery was committed in the matter of grant of licence for the Polyester Factory to Swadeshi Cotton Mills.

7. This leaves Issues No. 4 in Election Petition No. 4 and Election Petition No. 5. These read as follows:

E. P. No. 4:

(a) Whether all or any of the allegations made in paragraphs 8 (e) and 13 (a) to (m) of the petition constitute in law an offence of undue influence under Section 18 (1) (a) of the Act

(b) Whether the said allegations made in paragraphs 8 (e) and 13 (a) to (m) are true and proved

(c) In the event of these allegations being proved and constituting undue influence,

(i) whether the returned candidate has committed the offence of undue influence

(ii)whether the offence of undue influence was committed by his workers, and if so, with his connivance

(iii) whether the offence of undue influence was committed by others without his connivance, and if so, whether that has materially affected the result of the election

E. P. No. 5:

(a) Whether all or any of the allegations made in paragraphs 8 (e) and 13 of the petition constitute in law an offence of undue influence under Section 18 (1) (a) of the Act

(b) Whether the said allegations in paragraphs 8 (e) and 13 are true and proved

(c) In the event of these allegations being proved and constituting undue influence-

(i) whether the returned candidate has committed the offence of undue influence

(ii) whether the offence of undue influence was committed by his workers, and if so, with his connivance

(iii) whether the offence of undue influence was committed by others without his connivance, and if so, whether that has materially affected the result of the election

8. We may now refer to the pleadings relevant to Issue No. 5 in Election Petition No. 5.

9. In paragraph 8 (e) of the petition it is stated that the offences of undue influence at the election have been committed by the returned candidate and by his supporters with the connivance of the returned candidate. It is further stated that the material facts in support of this ground are in para. 13 of the petition. In para. 13 (a) are set out the facts which according to the petitioners led to the sharp cleavage between the electors of the Congress Party and all electors in general. In brief the history of the dispute between the two sections of the Party, which we will refer to as Congress (R) led by Shri Jagjivan Ram and Congress (O) led by Shri Nijalingappa, was set out. We need not extract the pleadings on this part of the case in detail because we will briefly refer to the background of the disputes and the facts as proved before us. But we may mention that this Court is not concerned with the merits of the dispute between the two sections of the Congress Party and we will consider this matter only insofar as it throws any light on the question of the offence of undue influence.

10. In paragraph 13 (b) (ii) it was alleged that "Shri Nijalingappa, Shri S. K. Patil, Shri K. Kamraj, Shri Morarji Desai and Shri Y. B. Chavan, electors at the election, were threatened by Smt. Indira Gandhi on July 12, 1969, at Bangalore with serious consequences with the object of unduly influencing these people for changing their decision to nominat Shri N. Sanjiva Reddy as their candidate. The threat given was repeated subsequently between 12th and 16-th July, 1969 a number of times." By order dated January 23, 1970, we directed that the petitioners were not entitled to lead evidence on this sub-para because we were of the opinion that these allegations, even if accepted, did not constitute any interference with the electoral right as defined in Sec. 171-A of the Indian Penal Code, i. e. the right to vote or refrain from voting at an election. As far as Shri Sanjiva Reddy was concerned there is no allegation that the Prime Minister had interfered or attempted to interfere with his right to stand as a candidate.

11. In paragraph 13 (b) (iii) it was alleged that a number of supporters of the returned candidate, and in particular Shri Jagjivan Ram, Shri Yunus Saleem, Shri Shashi Bhushan, Shri Krishna Kant and Shri Chandra Shekhar, Shri Jagat Narain, Shri Mohan Dharia and Shri S. M. Banerji, with the consent or the connivance of the returned candidate, published by free distribution a pamphlet, Annexure A-38, in Hindi and English, in cyclostyled form as well as in printed form, in which very serious allegations were made which amounted to undue influence within the meaning of Section 171-C of the Indian Penal Code.

12. In paragraph 13 (b) (iv) it was alleged that "this pamphlet was distributed from 9th to 16th August, 1969, among all the electors of the electoral college for the Presidential election. During these days it was also distributed in the Central Hall of the Parliament by the persons mentioned above. A large number of electors were asked to read the contents of this pamphlet and they were asked Will you vote for such a debauch and corrupt man The minds of the voters were so unduly influenced and an impression was purposely sought to be created that if Mr. Reddy was elected to the office of the President of India, the Rashtrapati Bhavan will become a centre of vice and immorality and that Shri Reddy will assume dictatorial powers and will bring an end to democracy in India. This scare was created in the minds of the electors with the direct object of interfering with their free exercise of their electoral right to vote for the candidate of their choice. As a single instance Shri Yunus Saleem approached Shri Abdul Ghani Dar, Member of Parliament, one of the petitioners herein, and talked to him in this behalf as stated earlier. This was said in the presence of a number of Members of Parliament."

13. In sub-paragraph 13 (b) (v) it was alleged that the petitioner, Shri Abdul Ghani Dar, "wrote a letter to Shri V. V. Giri, copy of which was endorsed to the Prime Minister and Shri Humayum Kabir." In this letter the petitioner requested Shri V. V. Giri to condemn those who had published this pamphlet and make a public statement dissociating himself from and denouncing the publishers of the pamphlet but Shri V. V. Giri failed to do so.

14. In sub-para. 13 (b) (vi) it was alleged that "this low-level pamphlet had evoked great public and press criticism and it came out openly in the press that such low-level pamphlets were being distributed in the election campaign." It was further alleged that:

"even news items regarding this pamphlet appeared in almost all leading newspapers of the country. In spite of this, the returned candidate, who was repeatedly harping upon and asking for votes in the name of character, integrity, etc., failed to dissociate himself from the pamphlet or even to condemn the same."

15. It was alleged in sub-para. (viii) that "the language of the pamphlet and the laudatory references to Smt. Indira Gandhi and her followers themselves point to the origin of the pamphlet."

16. In sub-para. (ix) of para. 13 (b) reference was made to a letter issued by Shri Madhu Limaye, M. P., which he wrote to the Election Commission of India, protesting against the alleged pamphlet and requesting him to take appropriate action. In sub-para. (x) reference is made to the reply of the Chief Election Commissioner. It was alleged in sub-para. (xi) that a similar letter was written by Shri Kanwar Lal Gupta, M. P., to the Election Commission and in sub-para (xii) reference was made to the reply of the Chief Election Commissioner dated August 14, 1969.

17. In sub-para. (xiii) it was alleged that the returned candidate, Shri V. V. Giri, made various statements at various places condemning the decision of the Congress Parliamentary Board in selecting Shri Reddy as its candidate and described it as immature. It is further alleged that Shri V. V. Giri "repeatedly stated that a man of character and integrity should have been selected." "The returned candidate in well-guarded language was stating that Mr. Reddy was not a man of character. He also exhorted Congressmen to demand a right of vote and made capital of the Congress Presidents appeal to Jan Sangh and Swatantra Party."

18. In sub-para. (c) (i) of para. 13 it was alleged that:

"the supporters of the returned candidate, Smt. Indira Gandhi, Shri Jagjivan Ram, Shri Fakhruddin Ali Ahmed, Shri Yunus Saleem, Dr. Karan Singh, Shri Dinesh Singh, Shri Swaran Singh, Shri I. K. Gujral, Shri Satya Narain Sinha, Shri K. K. Shah and Shri Triguna Sen were all occupying high ministerial positions in the Central Government and they misused these positions for furthering the prospects of the returned candidate by telephoning a large number of electors from their ministerial telephones of the Government, openly telling them that it was a matter of prestige and existence for them and that if the electors did not vote according to their wishes for Shri V. V. Giri, they would lose all their patronage and that if the electors voted as desired by them, they would receive governemental patronage at every step. So many electors were called by the above named Ministers at their official residences and offices in Delhi and undue influence was brought upon them by ordering them to vote for the returned candidate."

It was further stated that the returned candidate, Shri V. V. Giri, Sounded one of the Ministers mentioned above to influence the particular electors who were not found amenable to his own influence or persuasion.

19. In para. 13 (c) (ii) reference was made to Shri Yunus Saleem, Deputy Law Minister, obtaining signatures of the members of Rajya Sabha on some paper which in effect amounted to pledging their support for Shri V. V. Giri, the returned candidate, and what happened in the Rajya Sabha in connection with that incident.

20. In sub-para. 13 (c) (iii) it is alleged that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem threatened the Muslim voters that Shri Sanjiva Reddy was in fact a candidate of the Jan Sangh party and if he was elected the fate of the Muslim community in India will be in danger and in constant threat of extinction. An instance was given when Shri Yunus Saleem met Shri Abdul Ghani Dar, petitioner, and talked to him in the same terms. Further, reference was made to a letter issued by Shri Abdul Ghani Dar to all Muslim electors describing such a threat as baseless and mischievous. In sub-paragraph (iv) reference was made to a Ietter written by Shri Abdul Ghani Dar to the press in this connection.

21. In paragraphs 13 (c) (v) and (vi) reference was made to a threat issued to the members of the Legislative Assembly of Bengal that if Shri Sanjiva Reddy was elected he would enforce Presidents rule in Bengal, thus wiping off the United Front Government and the Legislative Assembly. Reference was made to a news item appearing in the papers on August 12, 1969, in this connection.We need not say anything more about this allegation because we refused to allow evidence to be led on this issue, as the allegations do not, even if accepted, amount to "undue influence."

22. In sub-para. (vii) it was alleged that a threat was issued to the members of the Legislative Assembly of Andhra Pradesh that the Assembly would be dissolved if Shri Reddy was elected. By order dated January 23, 1970 we refused to allow evidence to be taken on this point as the allegations do not, even if accepted, amount to "undue influence."

23. Some other allegations of undue influence were made in the subsequent paras but we did not allow the petitioners to lead evidence on those paras and they need not be mentioned.

24. The respondent, Shri V. V. Giri, in his reply first stated that:

"I propose to traverse the allegations directly made against me and also the insinuations or innuendoes that anything was done at my instance or with my knowledge and consent or connivance. I submit that I cannot traverse the allegations made against the Prime Minister or any other person as I do not have personal knowledge thereof."

The respondent did not, however, admit any of the allegations or insinuations against such persons and it was submitted that the petitioners were put to strict proof of every one of them.

25. The respondent denied the allegation in sub-para. (i) of para. 13 (b) of the petition and said that

"I was always appealing to the voters to exercise their vote according to their conscience and free will. I was, in fact, conducting my campaign single- handed."

In reply to sub-para. (iii) the respondent characterised the allegations as most reckless, wild and false and emphatically denied them. He stated that

"nowhere or at no time was it ever alleged within my knowledge that I or my supporters had anything to do with the publication or circulation of the alleged pamphlets."

26. In reply to sub-para. (iv) of para. 13(b) the respondent stated that he had no knowledge and did not admit any of the allegations made in that para and the petitioners made in that para and the petitioners were put to strict proof. He also did not admit that Shri Yunus Saleem approached Shri Abdul Ghani Dar, as alleged.

27. In reply to sub-paras (v) and (vi) of para 13 (b) the respondent denied that he had received any letter from Shri Abdul Ghani Dar. He stated that the only letter he received from Shri Abdul Ghani Dar was a letter dated July 24, 1969, in reply to respondents circular letter to the electors seeking their support. He further denied that he ever received a copy of the alleged pamphlet. He further stated:

"I say that in fact I saw the letter of August 11, 1969 of Shri Dar and the pamphlet attached as annexure to the Petition only after I received the copy of the Election Petition and the annexures. I entirely repudiate that I had anything to do with the pamphlet before its publication or after its publication. I also deny that any of my workers or supporters had anything to do with it, with my knowledge or connivance."

28. In reply to sub-para (viii) of para 13 (b) the respondent denied that persons alleged to be his workers and supporters were distributing the pamphlet and were telling voters not to vote for Shri Reddy, as alleged. He characterised both these allegations as baseless and false. In reply to sub-para (ix) he said that he was not aware of the letter, Annexure A-39. In reply to sub-para (x) he said that this matter was not relevant. In reply to sub-para (xi) it was asserted that Shri Guptas allegations were wild and baseless and the matter was irrelevant. In reply to sub-para (xii) he had no submission to make except that the matter was irrelevant.

29. With reference to sub-para (xiii) of para 13 (b) the respondent denied that during his tour of various places mentioned in the said paragraph he stated in any well-guarded language or otherwise that Shri Reddy was not a man of character. He stated that throughout his statements he adhered to the stand he had taken in his first statement of July 13, 1969, announcing his decision to stand as a candidate for the office of the President. He also annexed copy of a Press Statement issued on August 10, 1969, in which he reiterated the aforesaid stand.

30. With reference to sub-para. (i) of para. 13 (c) the respondent characterised the allegations as reckless, and irresponsible. The petitioner also denied that he sounded any Minister as alleged in the sub-para.

31. With reference to sub-paras. (ii), (iii), (iv) and (v) of para. 13 (c) the respondent said that he had no personal knowledge but put the petitioners to strict proof.

32. The respondent further replied to other paragraphs but nothing much turns on them. We may mention that at various places the respondent alleged that the paras were vague and no particulars had been given .

33. The respondent asked for particulars on various points and this Court directed particulars to be sup-plied. Particulars were supplied regarding para. 13 (b) (xiii) and para. 13 (c) (i). We will refer to the particulars whenever it is deemed necessary while appreciating the evidence of the petitioners.

34. We need not refer in detail to the allegations in Election Petition No. 4 which are substantially similar to those in Petition No. 5. The Advocate-on-Record for Election Petition No. 4 and Election Petition No. 5 the same and common evidence was led in both the petitions and common arguments were addressed thereon.

35. From the pleadings and the evidence led the main points which arise for our determination are:

(1) What is the true interpretation of Sec. 18 of the Act

(2) Was the pamphlet distributed by post to the electors

(3) Was the pamphlet distributed in the Central Hall of Parliament

(4) Does the distribution of the pamphlet by post and/or in the Central Hall constitute undue influence under Sec. 18 of the Act

(5) Was this pamphlet distributed with the connivance of the returned candidate

(6) Whether the offence of undue influence was committed by others without his connivance, and if so, whether it had material effect on the result of the election

36.Let us first address ourselves to the question of interpretation of Sec. 18. We have read the views expressed by Bhargava J., and Mitter J., but with respect we differ from them. Bhargava J., has held that the distribution of the pamphlet amounted to an offence under Sec. 171G, I. P. C., and not under Sec. 171C, I. P. C.According to Mitter J., distribution of the pamphlet by post and in the Central Hall does not by itself fall within Sec. 18 of the Presidential and Vice-Presidential Elections Act, 1952. According to him, before any publication of a defamatory matter relating to a candidate can be treated as commission of the offence of undue influence there must be some overt act in addition to the mere publication-some attempt or persuasion of a voter to restrain the free choice of a candidate before the law of undue influence is attracted.In our opinion, if distribution of the pamphlet by post to electors or in the Central Hall is proved it would constitute undue influence within Sec. 18 and it is not necessary for the petitioners to go further and prove that statements contained in the pamphlet were made the subject of a verbal appeal or persuasion by one member of the electoral college to another and particularly to those in the Congress fold.

37. The Presidential and Vice-Presidential Elections Act, 1952, was passed to regulate certain matters relating to or connected with elections to the office, inter alia, of the President of India. Part III of the Act deals with disputes regarding elections and Sec. 18 therein contained lays down the grounds for declaring the election of a returned candidate to be void. The relevant part of the section provides :

"If the Supreme Court is of opinion:

(a) that the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the connivance of the returned candidate; or

(b) that the result of the election has been materially affected (i) by reason that the offence of bribery or undue influence at the election has been committed by any person who is neither the returned candidate nor a person acting with his connivance.......... the Supreme Court shall declare the election of the returned candidate to be void."

Under Sec. 18, therefore, the election has to be declared to be void if, amongst other things, undue influence has been committed (i) by the returned candidate himself, (ii) by a person with his connivance, or (iii) by any person who is neither the returned candidate nor one having acted with his connivance, if the result of the election has been materially affected Section 18 (2) declares that "for the purposes of this section the offences of bribery and undue influence at an election have the same meaning as in Chapter IXA of the Indian Penal Code."

38. We may here compare the provisions of Sec. 18 (1) (a) and Sec. 18 (1) (b) (i) read with Sec. 18 (2) with Sec. 123 of the Representation of the People Act, 1951. This section lays down corrupt practices for the purposes of that Act which include undue influence upon proof of which an election has to be set aside. Though undue influence for purposes of that Act has the same meaning as in the present Act, that section does not go as far as Sec. 18 of the present Act so as to provide that even if it is committed by a third party, that is to say, not an election agent nor a person with the consent of the returned candidate, the election would still be declared to be void provided of course that it has been materially affected by such undue influence.From the fact that both these Acts were enacted by the same Legislature and Act 31 of 1952 was passed after the Representation of the People Act was passed, it is clear that Parliament deliberately made Sec. 18 stricter than the Representation of the People Act, firstly, by using the words "connivance of the returned candidate" instead of the words "his consent", and secondly, by including undue influence committed even by a stranger, having nothing to do with the returned candidate, as a ground for declaring the election to be void, the only condition in respect of such an act being that it should have materially affected the election.The object of doing so is obvious, namely, that Parliament wanted to ensure that in respect of an election for the highest office in the realm the election should be completely free from any improper influence emanating even from a third party with whom the returned candidate had no connection and without any connivance on his part.The only limitation, as aforesaid, placed in Sec. 18 is that in such a case it has to be established that the election was materially affected. The questions therefore, which would arise under S. 18 would be:

(1) Has the offence of undue influence been committed

(2) If so, was it committed by the returned candidate or by a person with his connivance and

(3) even if the offence committed was by a stranger and without the connivance of the returned candidate , has the committal of that offence by such "any person" materially affected the election

39. Chapter IXA of the Penal Code which deals with offences relating to elections was introduced in the Code by the Indian Election Offences and Inquiries Act (XXXIX of 1920). Section 171A defines candidate and electoral right. An electoral right means the right of a person to stand or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election. Section 171C, which deals with the offences of undue influence reads as under :

"(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-sec. (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)."

Sub-section (3) lays down that :

"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."

Section 171F provides for the penalty for the offence of undue influence which is either imprisonment upto one year or with fine or both. Section 171G provides:

"Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate shall be punished with fine."

40. The electoral right of an elector as defined in Section 171-A (b) of the Indian Penal Code, means "the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election." It was said that the right to vote envisages two stages: the first stage is when the elector goes through the mental process of weighing the merits and demerits of the candidates and then making his choice and the second stage is when having made his choice he goes to cast his vote in favour of the candidate of his choice. The argument was that the language of S. 171C suggests thatundue influence comes in at the second and not at the first stage, and therefore, it can only be by way of some act which impedes or obstructs the elector in his freely casting the vote, and not in any act which precedes the second stage, i.e., during the stage when he is making his choice of the candidate whom he would support.This argument was sought to be buttressed by the fact that canvassing is permissible during the first stage, and therefore, the interference or attempted interference contemplated by S. 171C can only be that which is committed at the stage when the elector exercises his right, i.e., after he has made up his mind to vote for his chosen candidate or to refrain from voting. It was further argued that the words used in Section 171C were "the free exercise of vote" and not "exercise of free vote". The use of those words shows that canvassing or propaganda, however virulent, for or against a candidate would not amount to undue influence, and that undue influence can only mean some act by way of threat or fear of some adverse consequence administered at the time of casting the vote.

41. We do not think that the Legislature, while framing Chapter IXA of the Code ever contemplated such a dichotomy or intended to give such a narrow meaning to the freedom of franchise essential in a representative system of government. In our opinion the argument mentioned above is fallacious. It completely disregards the structure and the provisions of Section 171C. Section 171C is enacted in three parts. The first sub-section contains the definition of "undue influence". This is in wide terms and renders a person voluntarily interfering or attempting to interfere with the free exercise of any electoral right guilty of committing undue influence. That this is very wide is indicated by the opening sentence of sub-section (2), i.e., "without prejudice to the generality of the provisions of sub-sec. (1)."It is well settled that when this expression is used anything contained in the provisions following this expression is not intended to cut down the generality of the meaning of the preceding provision. This was so held by the Privy Council in King-Emperor v. Sibnath Banerji, 1945 FCR 195 = (AIR 1945 PC 156 [LQ/PC/1945/30] ).

42.It follows from this that we have to look at sub-section (1) as it is without restricting its provisions by what is contained in sub-section (2).Sub-section (3) throws a great deal of light on this question. It proceeds on the assumption that a declaration of public policy or a promise of public action or the mere exercise of a legal right can interfere with an electoral right, and therefore, it provides that if there is no intention to interfere with the electoral right it shall not be deemed to be interference within the meaning of this section. At what stage would a declaration of public policy or a promise of public action act and tend to interfereSurely only at the stage when a voter is trying to make up his mind as to which candidate he would support. If a declaration of public policy or a promise of public action appeals to him, his mind would decide in favour of the candidate who is propounding the public policy or promising a public action. Having made up his mind he would then go and vote and the declaration of public policy having had its effect it would no longer have any effect on the physical final act of casting his vote.

43. Sub-section (3) further proceeds on the basis that the expression "free exercise of his electoral right" does not mean that a voter is not to be influenced. This expression has to be read in the context of an election in a democratic society and the candidates and their supporters must naturally be allowed to canvass support by all legal and legitimate means. They may propound their programmes, policies and views on various questions which are exercising the minds of the electors. This exercise of the right by a candidate or his supporters to canvass support does not interfere or attempt to interfere with the free exercise of the electoral right. What does, however, attempt to interfere with the free exercise of an electoral right is if we may use the expression, "tyranny over the mind". If the contention of the respondent is to be accepted, it would be quite legitimate on the part of a candidate or his supporters to hypnotise a voter and then send him to vote. At the stage of casting his ballot paper there would be no pressure cast on him because his mind has already been made up for him by the hypnotiser;

44. It was put like this in a book on Elections:

"The freedom of election is twofold: (1) freedom in the exercise of judgment. Every voter should be free to exercise his own judgment, in selecting the candidate he believes to be best fitted to represent the constituency; (2) Freedom to go and have the means of going to the poll to give his vote without fear or intimidation."*and**

*Law and Practice of Elections and Election Petitions - Nanak Chand - 1937 Edn., p. 362;

*Law of Elections and Election Petitions - Nanak Chand - 1950 Edn., p. 263.

45. We are supported in this view by the Statement of Objects and Reasons attached to the bill which ultimately resulted in the enactment of Chapter IXA. That Statement explains in clear language that

"undue influence was intended to mean voluntary interference or attempted interference with the right of any person to stand or not to stand as or withdraw from being a candidate or to vote or refrain from voting, and that the definition covers all threats of injury to person or property and all illegal methods of persuasion, and any interference with the liberty of the candidates or the electors".

"The legislature has wisely refrained from defining the forms interference may take. The ingenuity of the human mind is unlimited and perforce the nature of interference must also be unlimited."*and**

*Law and Practice of Elections and Election Petitions - Nanak Chand - 1937 Edn., p. 362;

*Law of Elections and Election Petitions - Nanak Chand - 1950 Edn., p. 263.

46.From a reading of Section 171G it is clear that in pursuit of purity of elections the legislature frowned upon attempts to assail such purity by means of false statements relating to the personal character and conduct of a candidate and made such acts punishable thereunder. But the fact that making of such a false statement is a distinct offence under Section 171G does not and cannot mean that it cannot take the graver form of undue influence punishable under Section 171F. The false statement may be of such virulent, vulgar or scurrilous character that it would either deter or tend to deter voters from supporting that candidate whom they would have supported in the free exercise of their electoral right but for their being affected or attempted to be affected by the maker or the publisher of such a statement. Therefore, it is the degree of gravity of the allegation which will be the determining factor in deciding whether it falls under Section 171C or Section 171G. If the allegation, though false and relating to a candidates personal character or conduct, made with the intent to affect the result of an election, does not amount to interference or attempt at such interference, the offence would be the lesser one. If, on the other hand, it amounts to interference or an attempt to interfere, it would be the graver offence under Sec. 171-F read with Section 171C.

47. We are also supported in our view by a number of decisions given on similar statutory provisions. The Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, contains the following relevant provisions. The expression "electoral right" was defined in the same manner as in Section 171A (b) of the Indian Penal Code. "Corrupt practice" in relation to an election by the members of a Provincial Legislative Assembly to fill seats in Provincial Legislative Council, means one of the practices specified in Pts. I and II of the First Schedule to this Order. "Undue influence" was defined in cl. 2 of the First Schedule to mean "any direct or indirect interference or attempt to interfere on the part of a candidate or his agent, or of any other person with the connivance of the candidate or his agent with the free exercise of any electoral right, provided that-

(a) without prejudice to the generality of the provisions of this paragraph, any such person as is referred to therein who

(i) threatens any candidate or elector, or any person in whom a candidate or elector is interested; with any injury of any kind; or

(ii) induces or attempts to induce a candidate or 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 that candidate or elector within the meaning of this paragraph;

(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 paragraph."

Paragraph 5 of the First Schedule is similar to Section 171G and reads as follows:-

"The publication by a candidate or his agent, or by any other person with the connivance of the candidate or his agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of the candidates election."

These provisions were the subject-matter of decision by the Election Tribunal in Amritsar City (Mohammadan) Constituency Case No. 2, The Indian Election Cases (1935-1950) 2 Doabias EC 150 at p. 157. It was observed as follows :

"It is true that the definition of undue influence is widely worded and covers all kinds of fraudulent acts or omissions which in any way, directly or indirectly, interfere with the free exercise of any electoral right, and it is also true that the definition extends not only to actual interference but even to an attempt at interference."

But on the facts the Tribunal observed:

"There is no proper evidence of actual interference before us, and as regards the attempt, we have to see if there was the deliberate intent to mislead voters and thus make them exercise their electoral right under the wrong impression that the respondent had been set up as a candidate by the Muslim League."

It was argued before the Commission that threat or element of compulsion was an essential ingredient of the corrupt practice of undue influence. The Commission observed:

"We cannot, however, find any basis in the definition of "undue influence" for the proposition that unless Mr. Zaffar Ali Khan threatened, or compelled the voters to vote in a particular manner, the offence of "undue influence" was not complete. The definition of "undue influence" is very wide in its terms and includes four different forms of interference, viz., direct interference, indirect interference, direct attempt to interfere and indirect attempt to interfere, and it is nowhere laid down that such interference or attempt to interfere should be by the method of compulsion............. although we are prepared to concede that the inducement must be of such a powerful type as would leave no free will to the voter in the exercise of his choice. There would, of course, be in such a case mental compulsion in a sense but it is not necessary that there should be physical compulsion or that a threat must be actually held out by the person who interferes or attempts to interfere." (p. 160).

48. In Jujhar Singh v. Bhairon Lall (1953) 7 ELR 457 at p. 461 (Elec. Tribunal, Kotah), the petitioner was a Ram Rajya Parishad candidate, and the respondent, Bhairon Lall, fought on the Congress ticket. It was alleged that a poster was published against the Ram Rajiya Parishad and Jagirdars and this constituted undue influence within Sec. 123 (2) of the Representation of the People Act 1951. It was held that the publication of the poster constituted undue influence. The Commission observed:

"It may be observed that an attempt to interfere by the method of compulsion is not necessary and that even the method of inducement may be sufficient, provided it be of such a powerful type as would leave no free will to the voter in the exercise of his choice. In other words, actual physical compulsion is not necessary, but, positive mental compulsion may be enough to give rise to an undue influence. For the reasons which we shall presently give, we read this sort of mental compulsion in the poster, and, therefore, hold that it falls within the purview of undue influence."

The slogan of the poster was described thus:

"Vote for Congress in order to put an end to the atrocities of the Jagirdars. On the left-hand side, a person - apparently a tenant-is shown tied up to a tree with a rope. On the right there is a well-dressed Jagirdar asking his man, who is seen waving a whip, to flog the tenant. Evidently, the tenants wife who has apparently attempted to intervene, has been thrown down prostrate on the ground. To the right-hand side of the picture, there is symbol of two bullocks with yoke on, and nearabout the slit there are the hands of so many voters, male and female, attempting to cast their votes in the ballot- box."

49. In Radhakanta Mishra v. Nityananda Mahapatra, (1958) 19 ELR 203 (Orissa), there was a difference of opinion whether the respondent and his agent had committed corrupt practice of undue influence by publishing a booklet entitled "why should you vote for me" where the picture of a dead body with the objectionable caption appeared, and it was stated that the individual had died of police firing and that the Congress had killed him. Barman, J., held that it constituted undue influence while Rao, J., held that it did not. There being difference of opinion, the case went to Das, J., who held that it did not amount to undue influence. Das, J., observed regarding Section 123 (2) of the Representation of the People Act that "there may be some element of mental compulsion, but not necessarily a physical one or a threat actually held out by the person who interferes or attempts to interfere". We are not concerned with the question whether the booklet in that case constituted undue influence or not but only with the interpretation of the section. Barman, J., observed:

"A voter must be able to freely exercise his electoral right. He must be a free agent. All influences are not necessarily undue or unlawful. Legitimate exercise of influence by a political party or association or even an individual should not be confused with undue influence. Persuasion may be quite legitimate and may be fairly pressed on the voters. On the other hand, pressure of whatever character, whether acting on the fears, threat, etc., if so exercised as to overpower the volition without convincing the judgment is a species of restraint which interferes with the free exercise of electoral right........... It is not necessary to establish that actual violence had been used or even threatened. Methods of inducement which are so powerful as to leave no free will to the voter in the exercise of his choice may amount to undue influence. Imaginary terror may have been created sufficient to deprive him of free agency."

50. The scope of Section 171C, I. P. C., was considered in a recent decision of this Court in Baburao Patel v. Dr. Zakir Hussain, (1968) 2 SCR 133 [LQ/SC/1967/317] at p. 145 = (AIR 1968 SC 904 [LQ/SC/1967/317] at p. 911). Wanchoo, C. J., speaking for the Court observed:

"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 171C 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-sec. (2) of Section 171C 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 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 171C 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 171C shows the mere exercise of a legal right without intent to interfere with an electoral right would not be undue influence."

51. It is not necessary to consider the provisions of the Indian Contract Act or the English Law on the subject because we have a special definition given by Parliament.

52. The question that then arises is: Whether the publication of this pamphlet can be said to constitute undue influence We have no doubt that it does fall within that definition. It is not necessary to reproduce the pamphlet in detail as we shall only be giving further publicity to this most objectionable pamphlet.The pamphlet after giving various fictitious incidents of sexual immorality, describes Shri N. Sanjiva Reddy a debauch without any sense of shame or morality: Then the pamphlet asks:

"Should the name of the Congress be lowered to such depths that this moral leper, this depraved man should be set up as the Congress candidate for the highest post"

It further adds:

"A senior Congress M. P. has expressed the fear: If Sanjiva Reddy becomes President, he will turn Rashtrapati Bhavan into a harem, a center of vice and immorality"

53. It seems to us that these allegations are covered under Sec. 171C, even if they may be covered under Section 171G. But we are not concerned with Section 171G because that section has not been made a ground for setting aside an election.We are only concerned with Section 171C. Be that as it may, we cannot add another sub-section to S. 171C, as follows:

"A false statement of fact in relation to the personal character or conduct of any candidate even if made with the intention of interfering with the electoral right shall not be deemed to be interference within the meaning of this section."

54. It was said that this pamphlet cannot come under Section 171C because it was issued anonymously and, therefore, it was not likely to interfere with the choice of the electorate, particularly as the electorate consisted only of members of Parliament and members of State Legislatures. But, in our opinion, this argument is fallacious.First, this has no relevance to the question whether any attempt to interfere with the electoral right has been made or not. Secondly, a series of anonymous attempts in a country like ours would have as much, if not more, effect as one open powerful attempt. It would be dangerous to provide a sanctuary to anonymous attempts.Thirdly, on the facts of this case, can we say that the distribution in the Central Hall is the same thing as anonymous publication If a member of Parliament distributes a pamphlet, is he not identifying himself with it unless he expressly dissociates himself from the pamphelet It seems to us that the distribution in the Central Hall by members of Parliament has the same effect as if they had endorsed the pamphlet in writing.

55. We are accordingly of the opinion that distribution of the pamphlet by post as also distribution in the Central Hall constituted an attempt to interfere with the free exercise of the right to vote within Section 18 of the Act.

56. We must first mention that both the parties led extensive evidence to prove the genesis of the dispute between the Congress party led by Shri Jagjivan Ram and the Congres party led by Shri Nijalingappa. We were told about the proceedings of the Faridabad session and the Bangalore Session and the circumstances attending Shri Morarji Desais resignation. Further the whole of the correspondence between the Prime Minister and Shri Nijalingappa, and between Shri Jagjivan Ram and Shri Fakhruddin Ali Ahmed and Shri Nijalingappa between August 9 and August 18 was exhibited in the case. But as it is not necessary for us to determine the exact genesis of the dispute we will only take note of the fact that both the congress parties were opposed to each other at the time of the election and had different views on certain economic issues and the Presidential election became a vital issue between them. In view of the above we will have to judge the evidence given by the witnesses with care, and wherever possible seek corroboration of the evidence from circumstances or other in dependent evidence.

57. We may now deal with the question whether it is possible to find out who printed or published the pamphlet and whether it was distributed by post and/or in the Central Hall of Parliament. Regarding the authorship of the pamphlet no evidence has been led by the petitioners but it was contended on their behalf that if the pamphlet is closely scrutinised there are indications in the pamphlet that it is the work of some Congressmen belonging to that party of the Congress which is now led by Shri Jagjivan Ram. Although this argument appears to be attractive, we cannot come to the conclusion that it was the work of the members of any particular party. The fact that certain witnesses have admitted that the first part of the pamphlet represents their ideology leads us nowhere because it would not be difficult for other persons to reproduce their ideology in words. Their ideology is well known and they are not averse to expounding it in great detail, as was done before us. But as we have already said, we cannot hold that it is the work of members belonging to any particular political party.

58. Regarding the distribution by post there is overwhelming evidence that the pamphlet was widely distributed by post. Part of it will be referred to when dealing with the question of distribution of the pamphlet in the Central Hall. Even the Prime Minister Smt. Indira Gandhi, received a copy of it, as is clear from her letter - Exhibit P-85 - dated August 21, 1969, to Shri Madhu Limaye, M. P., in reply to his letter dated August 13 1969. In this letter she, inter alia, wrote:

"The leaflet came to me by post and I immediately asked the Home Ministry to institute an inquiry as to the source so that necessary action could be considered. This was, before I received your letter."

No evidence was led by either side as to whether such an inquiry was made, and if so, whether the authorship of the pamphlet was found out. We may mention that Mr. Daphtary, the learned counsel for the respondent, did not argue the question about the distribution by post and admitted that distribution of the pamphlet by post had taken place.

59. Then we come to the question of distribution of the pamphlet in the Central Hall. On this point the evidence is extremely conflicting. Shri Kanwarlal Gupta, M. P., P. W. 11, stated that he saw the pamphlet being distributed in the Central Hall of Parliament by some members; one was Shri Yunus Saleem and the other was Shri Shashi Bhushan. He said that he was definite about these two members. He further stated that he did not receive it in Parliament but some other members did and it was being openly distributed. In cross-examination he stated that Shri Yunus Saleem gave it to two or three people; he came and gave one pamphlet to each. Shri Gupta produced copy of a letter dated August 14, 1969, which he had written to the Chief Election Commissioner in this connection. In this letter - Exhibit P- 37 - it is, inter alia, stated:

"Moreover,pamphlets are being distributedin which vulgar charges have been levelled against another candidate for this high office. Character assassination is going on. I am sending a copy of the pamphlet in which vulgar and filthy attacks have been made against Shri N. Sanjiva Reddy. This amounts to corrupt practice under the Election Law. These pamphlets arebeing distributedby the supporters of the Prime Minister.Shri M. Yunus Saleem, a Minister in her Cabinet and some others are very active in it."(emphasis supplied).

The Chief Election Commissioner acknowledged this letter by his demiofficial letter - Exhibit P-16 - dated August 14, 1969. This letter certainly corroborates Shri Kanwar Lal Guptas statement that Shri Yunus Saleem was distributing this pamphlet but it would be noted that in the letter to the Election Commissioner there is no mention of the Central Hall of Parliament. We will discuss this letter in detail a little later.

60. Smt. Jayabehn Shah, M. P., P. W. 25, deposed that she saw this pamphlet being distributed in the Centrial Hall and she saw Shri Shashi Bhushan, M. P., distributing it, although she did not receive it personally from him. We may mention that she belongs to the Congress Party headed by Shri Nijalingappa.

61. Shri Nanubhai Nichhabhai Patel, M. P., P. W. 26, deposed that he saw the pamphlet in the Central Hall of Parliament about the 12th or 13th of August, and Shri Yunus Saleem, Shri Shashi Bhushan, and Shri Chandra Shekhar were distributing the pamphlet; they came to give him this pamphlet but he told them: "Yes, I have received it in my flat". In answer to the question "what did they tell you" he stated:

"They asked me whether I had gone through this pamphlet thoroughly. I said, "Yes". Then they told me "Be careful and before voting you consider all these facts".

In answer to the question "Who told you", he replied: "Mr. Saleem". In cross-examination he said that he had not told the petitioners or either of them, Shri Rama Reddy or Shri Abdul Ghani Dar, that the pamphlet was distributed by Shri Jagat Narain, Shri Mohan Dharia or by Shri Yunus Saleem. This question was put in cross-examination in view of the particulars supplied by Shri Abdul Ghani Dar, petitioner, that Shri Krishan Kant, Shri Chandra Shekhar, Shri Jagat Narain, Shri Shashi Bhushan and Shri Mohan Dharia had distributed the pamphlet, inter alia, to Shri N. N. Patel, M. P. Shri Abdul Ghani Dar had verified that this was on the information received from the member of Parliament mentioned as recipient of the pamphlet.

62. The learned counsel for the respondent, Mr. Daphtary, had at various times asked questions in cross-examination from the petitioners witnesses in order to elicit the information they gave to Shri Abdul Ghani Dar or Shri Sri Rama Reddy with a view to show that the particulars and the evidence in most cases are in conflict. He says that we should draw an inference against the evidence of these witnesses wherever there is conflict between what is stated in the particulars and what is ultimately stated in the evidence.In this particular case it appears that some particulars were given by guess-work rather than by ascertaining from the witnesses. We cannot, however, disbelieve witnesses only because the particulars are at variance with their evidence. But we will bear the fact in mind while appreciating their evidence.

(After discussing evidence (Paras 63 to 129) regarding the distribution of the pamphlet His Lordship proceeded.)

130. Viewing the evidence as a whole we are of the opinion that the pamphlet was distributed by post and in the Central Hall of Parliament by some members of Parliament and there was wide discussion about it in the Central Hall. As we have mentioned earlier, the evidence of the witnesses of the petitioners that there was distribution in the Central Hall is corroborated by contemporaneous documents.

131. On the question as to who were the persons who were distributing the pamphlet in the Central Hall it is not, in our opinion, necessary for us to arrive at a finding from a mass of evidence which is both conflicting and partisan. The distribution of the pamphlet in the Central Hall was relied on by the petitioners for the purpose of bringing home to the respondent knowledge about the pamphlet and its publication and his connection with it. The petitioners, however, have failed in their object, for, there is no evidence whatsoever to show that the respondent had any connection with the pamphlet or with its distribution. Nor is there any evidence to show that anyone connected with the distribution either through the post or in the Central Hall had any contact with the respondent, or that he distributed it with his knowledge or connivance. The question of identity of those who distributed it in the Central Hall, therefore, has in these circumstances become unnecessary and even futile. What is also equally important is that there is no provision in the Act for giving notice to and hearing persons alleged to be the distributors. A finding that a particular member or members of Parliament committed the offence of publication, an act punishable under the Penal Code, would thus amount to a finding arrived at without giving such person or persons an opportunity of being heard.

132. It was urged on behalf of the petitioners that the respondent, Shri V. V. Giri, had connived at the distribution of the pamphlet.

[Then again discussing evidence regarding such connivance (Paras 132 to 150) His Lordship observed]: We must, therefore, hold that it has not been proved that there was any connivance on the part of Shri Giri to the printing, publishing or distribution of the pamphlet.

151. We have already said, and we may repeat, that there is no evidence whatsoever that there was any intimate connection between Shri V. V. Giri and the alleged distributors. What they were doing in this connection they were doing on their own and Shri Giri cannot be held responsible for their deeds unless, of course, it is established that the result of the election had been materially affected by the distribution of the pamphlet. This question we shall now consider.

152. It is well settled that the burden of proving that the result of the election has been materially affected is on the petitioners.(See Vashist Narain Sharma v. Dev Chandra, (1955) 1 SCR 509 [LQ/SC/1954/100] = (AIR 1954 SC 513 [LQ/SC/1954/100] ); Mahadeo v. Babu Udai Pratap Singh, (1966) 2 SCR 564 [LQ/SC/1965/313] = (AIR 1966 SC 824 [LQ/SC/1965/313] ); Paoki Haokip v. Rishang, Civil Appeal No. 683 of 1968, D/- 12-8-1968 = (AIR 1969 SC 663 [LQ/SC/1968/205] ) and G. K. Samal v. R. V. Rao, Civil Appeal No. 1540 of 1969, D/- 20-1-1970 (SC). The learned counsel, relying on Surendra Nath Khosla v. Dalip Singh, 1957 SCR 179 [LQ/SC/1956/110] = (AIR 1957 SC 242 [LQ/SC/1956/110] ), urged that this court should draw a presumption, as was done in the case of a rejection of a nomination paper, that the result of the election has been materially affected, from the nature of the pamphlet and the manner of its distribution. He further stressed the fact that the petitioners were not in a position to compel witnesses to disclose their change of view and say for whom they voted.

153. A similar argument was advanced before this Court in Samant N. Balakrishna v. George Fernandez. AIR 1969 SC 1201 [LQ/SC/1969/63] at p. 1225. But the learned Chief Justice rejected it thus:

"In our opinion the matter cannot be considered on possibility. Vashist Narains case, (1955) 1 SCR 509 [LQ/SC/1954/100] = (AIR 1954 SC 513 [LQ/SC/1954/100] ) insists on proof. If the margin of votes were small something might be made of the points mentioned by Mr. Jethamalani. But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge. There is no reason, therefore, for a reasonable judicial guess. The law requires proof. How far that proof should go or what it should contain in not provided by the legislature. In Vashists case. (1955) 1 SCR 509 [LQ/SC/1954/100] = (AIR 1954 SC 513 [LQ/SC/1954/100] ) and in Inayatullah v. Diwanchand Mahajan, 15 ELR 219 = (AIR 1959 Madh Pra 58) the provision was held to prescribe an impossible burden. The law has however remained as before. We are bound by the ruling of this Court and must say that the burden has not been successfully discharged. We cannot overlook the rulings of this Court and follow the English rulings cited to us."

The learned counsel invited us to overrule this decision. It is too late in the day to do this. This view was taken very early by various Election Tribunals. It was observed in Surendra Narayan Sinha v. Babu Amulyadhone Roy, (1935-1950) 2 Doabias E. C. 368 at p. 378:

"In the direct form in which provision is made for this matter in paragraph 7 (1) (c) of the Order there is no scope for interference on the ground that in the opinion of the Commissioners the result of the election might have been affected by the irregularity. This view has been taken in respect of a similar provision to that laid down in paragraph 7 (1) (c) in three cases reported in Hammonds Election Cases (1936 edition), namely in Bulandshahr District (East) 1921 (page 219), Lahore City (M) 1921 (page 469), and Patna West (N. M. R.) 1927 (page 535).

Then the Commissioner goes on to say that "it may be that in some circumstances the provision in this rule may operate harshly, where a tribunal may feel that the result of an election may well have been affected by a serious irregularity, but it may be impossible for the petitioner to establish this positively but we have to interpret and follow the rule as it stands."

154. Parliament, knowing of the views held by various Commissioners and Judges have failed to intervene, and it is not for us to legislate.

155. Let us then see if the petitioners have been able to affirmatively prove that the result of the election was materially affected by the distribution of the pamphlet. They sought to prove this by showing what the impact of the pamphlet on various electors and their reaction was. The reaction, as is to be expected varied greatly in its intensity. The witnesses describe it variously "It was in bad taste, very derogatory; it was dirty, scandalous, extremely bad, pernicious, contemptible, character assassination, horrible, vulgar and scurrilous, false and malicious, foul and filthy, unpleasant and foul." Shri Madhu Limaye, M. P., thought that it would affect the chances of his candidate, Shri Giri. Shri Kanwar Lal Gupta, M. P., was in doubt what to do and what not to do. Shri K. S. Chavda, M. P., said that he changed his mind. Shri N. P. C. Naidu, M. P., concluded that members would not vote for Shri Reddy. Shri Shiv Narain, M. P., frankly stated that though he thought that such a man should not be the President, yet Shri Rama Reddy convinced him that the pamphlet was totally false and he abided by the decision of the Congress Party Board. Smt. Jayabehn Shah, M. P., felt perplexed right upto the date she cast the vote but failed to positively assert that she voted for some other candidate because of the pamphlet. Shri N. N. Patel, M. P., said that he changed his attitude after reading the pamphlet and adhered to it till the last moment. Shri Mohan Lal Gautam, M. P. does not disclose how he voted. Neither does Shri S. Supakar, M. P., disclose how he voted, although he felt very sad on reading the pamphlet. Shri C. D. Pande, M. P., said that although his faith in the uprightness of Shri Sanjiva Reddy was shaken, it did not affect his vote. Shri P. N. Deb, M. P., felt very much prejudiced against Shri Reddy but did not say that he voted against him because of this pamphlet. Shri Hukum Chand Kachwai, M. P., a member of the Jan Sangh said that at time he thought the allegations foul and they did influence his mind, but failed to say whom he voted for. Shri Suraj Bhan, M. P., deposed that the pamphlet, so far as he was concerned, affected the directions which had been given by his leaders. Smt. Pushpabehn Mehta, M. P., does not say that the pamphlet affected her vote. Shri Morarji Desai, M. P., described the impact on his mind thus:

"This would affect an average voter against Shri S. Reddy adversely, because the contents are so shocking and in this country people believe many things without going into them, especially wrong things are believed more easily."

Shri Shri Chand Goyal, M. P., admitted that "it is not that I exercised my franchise guided by it." The impact on Shri Ram Krishan Gupta was totally different than intended. He said that after reading the pamphlet "I became a stronger supporter of Shri Sanjiva Reddy because I thought such like posters are not good and should not be issued." Shri R. Muniswamiah, M. L. A., said that the contents prejudiced his mind, and he could not risk not to believe them, but did not disclose how he voted. He, however, admitted that he is a loyal Congressman and has adhered scrupulously to the directives of his party. Shri S. Nijalingappa said that the pamphlet would adversely affect Shri Reddys chances of success. Shri M. S. Gurupadaswamy, M. P., did not say that the pamphlet affected him although "the motivation was to defame the candidate Shri Sanjiva Reddy and jeopardise his chances of being elected as President." Shri D. S. Raju, M. P., said that he was shocked by the pamphlet but he had always been a loyal Congressman and scrupulously abided by the directives of the party. Shri Patil Putappa, M. P., felt whether he would be doing the right thing by voting for Shri Sanjiva Reddy after reading the pamphlet but admitted that he had always been disciplined and loyal Congressman and loyal to the directives of the party. Shri Sher Khan, M. P., did not believe in the truth of the allegations in the pamphlet as he had known Shri Sanjiva Reddy personally, but felt that those persons who did not know Shri Sanjiva Reddy might be affected by the pamphlet. Chaudhary A. Mohammad, M. P., said that the pamphlet did affect his mind but he did not view his decision in that light, being a loyal soldier of the Congress. Shri C. M. Kedaria deposed that after reading the pamphlet he could not risk voting for such a candidate for such a high post. Whether he actually voted for Shri Sanjiva Reddy or not is anybodys guess because neither side asked him that question. Shri N. Sri Rama Reddy M. P., one of the petitioners, had known Shri Sanjiva Reddy for the last 35 years, and was his counting agent. It is not suggested that his vote was affected by the pamphlet. Shri Abdul Ghani Dar, M. P., a petitioner, stated that after the pamphlet was read out to him he thought "that country was sinking and extreme danger has been posed to the democracy." It is, however, quite clear from his evidence that he did not believe that Shri Sanjiva Reddy was a debauch. We have not referred to the evidence of electors from U. P. who deposed to meeting Shri Dinesh Singh at Lucknow because, as will presently appear, much reliance cannot be placed on what they say.

156. It will be evident from the above analysis of the evidence that apart from two witnesses it is not certain whether the others were so affected by the pamphlet that they changed their mind. Then there are witnesses who say that there was no effect on their voting, either because they knew Shri Sanjiva Reddy or did not believe the allegations or that they were loyal and disciplined members of the Congress Party. Five witnesses were strongly prejudiced but they do not say that this prejudice finally affected their voting or not. Two remained sad or disgusted but failed to disclose whether it had any effect on them. One thought that the party directive was affected. Apparently he was not personally affected. One witness became a firm supporter of Shri Sanjiva Reddy because of the pamphlet. Some witnesses opined that others would get affected, which evidence cannot assist the petitioners in any manner.

157. On this evidence it is difficult to hold that the petitioners have proved that the publication and distribution of the pamphlet materially affected the result of the election. It only leads to the conclusion that it probably did have some effect but the vast majority of the electors were able to throw off the effect of the pamphlet and vote according to their own personal wish or according to the mandate of their party.

158. There is evidence that there was great deal of talk about the pamphlet. There was time before voting for the electors to exchange views about the pamphlet and ascertain the truth. Shri Sanjeeva Reddy had been the Speaker of the Lok Sabha and was a well-known and leading political personality.

159. There were various other issues excrcising the minds of electors, particularly belonging to the Congress Party. If in spite of all these factors some were unduly influenced in their thinking it was for them to come and say so. There was no landslide against Shri Sanjiva Reddy. Two hundred and sixty-eight members of Parliament gave him the first preference. Ninety-two members of Parliament, who had given first preference to Shri C. D. Deshmukh gave second preference to Shri Sanjiva Reddy. It is, however, true that if 26 more members of Parliament had voted for Shri Sanjiva Reddy, instead of Shri Giri, the former would have been elected.

160. Therefore, on the evidence before us, it is impossible to sustain the contention of the petitioners. In the result we hold that it has not been proved that the result of the election was materially affected by the publication and distribution of the pamphlet.

161. The learned counsel for the petitioners urged another point in order to impeach the validity of the election. It was said that Shri Dinesh Singh, then Minister for External Affairs, visited Lucknow somewhere round about the 10th of August and exercised undue influence on various members of U. P. Legislature. Shri Dinesh Singh denied having ever visited Lucknow round about that time. He said that he did not go to Lucknow till after the polling date. A number of witnesses have been produced on behalf of the petitioners to establish the visit of Shri Dinesh Singh to Lucknow.

[After discussing the evidence in Paras 162 to 183 His Lordship concluded.]

184. We are satisfied from the evidence which we have extracted above that Shri Dinesh Singh did not visit Lucknow on the 10th of August or any other day thereabout and the case of the petitioners that Shri Dinesh Singh visited Lucknow is not true.

185. We have already mentioned that it was alleged in the petition that Shri V. V. Giri repeatedly stated at various places that "a man of character and integrity should have been selected" and he, in well-guarded language, was stating that Shri Reddy was not a man of character. Shri V. V. Giri denied these allegations and stated that throughout his statements he adhered to the stand as a candidate for the office of the President. The petitioners produced 8 witnesses to substantiate this charge. It is common ground that Shri V. V. Giri visited Lucknow during his election tour - Lucknow was his first halt-and addressed a meeting at Darulshafa. There is dispute as to what Shri Giri said at the meeting and as to whether he met M. L. As. individually or in groups. The eight witnesses mentioned are: Shri Bansidhar Pandey, P. W. 18, Shri Ram Singh, P. W. 19, Shri Jagdish Pershad, P. W. 20, Shri Rajendra Prasad, P. W. 21, Shri Basant Lal Sharma, P. W. 22, Shri Ram Pyare Panike, P. W. 37, and Shri Abdul Salim Shah, P. W. 38. These witnesses also deposed to Shri Dinesh Singhs visit to Lucknow and we have disbelieved their version. In these circumstances we must view their evidence with extreme care and caution.

186. It will be noticed that the witnesses have given different versions as to what Shri V. V. Giri said.

187. Shri Bansidhar Pandey, P. W. 18, Shri Jagdish Pershad, P. W. 20, and Shri Basant Lal Sharma, P. W. 22, said that Shri Giri told them that they should vote for him in the Presidential election. P. W. 19, Shri Ram Singhs version was: "At that time he asked us that I am the candidate of the Prime Minister and I must be voted for the Presidential Election and she has supported him and therefore I must get the votes". Shri Ram Pyare Panike, P. W. 37, struck a different note. According to him Shri V. V. Giri said: "He told us that we should vote for him because he told us that he was also the Governor of other States and he was also Vice-President. So he told us that a man like him should be voted and we should vote in favour of Mr. Giri". He further deposed that after the meeting he and three or four M. L. As. met Shri Giri separately and he told them the same thing and in addition said: "If you want to progress India a man like me should be voted".

188. P. W. 38, Shri Abdul Salim Shahs version is that Shri V. V. Giri said that he had been the Vice-President and also a Governor on behalf of the Congress and

"I have spent the whole of my life in the Congress in the companionship with Mahatma Gandhi. I deserve it more that I should be elected as the President of India."

He added that at a personal meeting along with Shri Mumtaz Khan Shri Giri asked us whether we would vote for him.

189. The last witness on this point, Shri Mumtaz Khan, P. W. 44, gave the most detailed version. According to him Shri Giri "appealed to the members of the Assembly to vote for him. He said that he has held very high offices. He was the Vice-President of India. He was also the Governor of U. P., he has been doing social service all throughout his life and he was a very fit candidate for the Presidentship of India. Besides this, he said that the other candidates are not as good as he is. Besides, he also said this thing that the Congress had done a great blunder in nominating Mr. Sanjiva Reddy as its candidate. He said all these things." At a personal meeting with him and two or three friends, according to this witness, Shri Giri "appealed to us that you vote for me and besides this he said that Sanjiva Reddy is not a suitable candidate. There are so many spots on his character and the Congress High Command has done a great blunder in nominating him as its candidate. Besides this, he said you see my services and all these things."

190. It will be noticed that Shri Mumtaz Khan, P. W. 44, is the only witness who stated that reference was made to Shri Sanjiva Reddy, and Shri Ram Singh, P. W. 19, is the only witness who mentioned that a reference was made to the Prime Minister.

191. Shri Daphtary, the learned counsel for the respondent, put all the above statements to Shri V. V. Giri. Shri Giri categorically denied meeting M. L. As. individually or in small groups. He said that all his addresses were on the basis of the statement that he issued on July 13, 1969. He stated that at no stage he said that he was supported by the Prime Minister either at Lucknow or elsewhere. He further deposed that he never referred to the "other candidates" and whatever he stated was about his own qualifications. He denied having referred to Shri Sanjiva Reddy and also denied having ever said that Shri Sanjiva Reddy was not a suitable candidate, and further, according to Shri Giri, it was absolutely false that he said that "there are so many spots on his character and the Congress High Command has done a great blunder in nominating him as its candidate".

He admitted that he said about himself, his qualifications, but there also he was very guarded.

192. On the respondents side Shri Shivanand Nautiyal, M. L. A., R. W. 26, supported Shri Giris version of the meeting. Shri Nautiyal admitted that he was an active supporter of Shri Giri. According to him, Shri Giri said that he was an independent candidate and told everything about his work and nothing more; in particular he did not, in the course of what he said, refer to Shri Sanjiva Reddy, nor did Shri Giri say that he was Shrimati Indira Gandhis candidate. According to the witness, after the meeting Shri Giri left, accompanied by 17 or 18 people, and that no talk took place between them and Shri Giri. In cross-examination he stated that Shri Giri talked about his work and his visit to many countries and he explained every thing but did not discuss political issues with them.

193. Another witness, Shri Ashraf Ali Khan, M. L. A., R. W. 27, gave an account of Shri Giris talk to them. He said:

"He talked about his candidature that he was seeking his election as an independent candidate, because he considered that the post of the President was of such a stature that a non-party man should seek election, and that he had always stood for the common man and worked for him throughout his labour movement, and he was seeking the vote of all persons who believed in the ideology of the common man".

He further added that not a single word was said about Shri Sanjiva Reddy or that he was a candidate put up by Smt. Indira Gandhi. The witness admitted that he was elected on the Congress ticket; he only went to the meeting because it was held in the hostel compound. He said that other congressmen also attended the meeting because it was held in the hostel.

194. The statement of Shri V. V. Giri, dated July 13, 1969, is exhibited as P. 66A. Our attention was invited by the learned counsel for the petitioners to the sentence in the statement:

"I would only say that the candidate selected for the highest office should possess character, integrity, patriotism, experience, record of service and sacrifice. I feel in all modesty I could claim to have these attributes in some measure".

We are unable to appreciate how this sentence makes it probable that Shri Giri would mention Shri Sanjiva Reddy and say something about his character at Lucknow. Another passage in the statement which was pointed out was:

"The highest office of the land must be one that is above party politics. While the majority party has every right to choose its nominee, in a democracy care should be taken to see the candidate so selected enjoys, as far as possible, the confidence of other groups also. I am deeply pained by the recent events that have tended to lower the dignity and moral authority of this august office."

We are again unable to see how this makes it more probable that Shri Giri would attack the character of Shri Sanjiva Reddy at Lucknow.

195. Further, on August 1, 1969, it was not definitely known whether Smt. Indira Gandhi would support the candidature of Shri Giri. There is no evidence of Shri Giri having met the Prime Minister except on July 20, 1969. Shri Giri said that he had not spoken either to the Prime Minister or to any Minister before he announced his candidature. He further stated that he was the Prime Minister on July 20, 1969, when she came to see him at a ceremonial function when he was leaving the Rashtrapati Bhavan and she had come to say "good-bye" and he said "good-bye" to her. He categorically stated that they did not meet each other any time between the 20th July and the 16th August, 1969.

195-A. We are of the view that Shri Giris version is preferable to the version given by the petitioners insofar as there is any conflict, and therefore we hold that the allegations made in the petition in this respect have not been substantiated.

196. We may next deal with the allegations in paragraph 13 (c) (iii) of the petition to the effect that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem threatened Muslim voters that Shri Sanjiva Reddy was in fact a candidate of the Jan Sangh Party and that if he was elected the fate of the Muslim community in India will be in danger and in constant threat of extinction.

[Then after discussion evidence (paras 196 to 213) His Lordship observed.] It seems to us that the evidence on this point is too unsatisfactory to be believed without corroboration from independent sources.

214. In view of these considerations we hold that the allegations in sub-para 13 (c) (iii) have not been proved.

215. Only a few minor points now remain. No evidence was led in connection with the allegation made in sub-para (c) (i) of para 13 of the petition.

It was alleged, to state briefly, that the supporters of the returned candidate, Smt. Indira Gandhi and other Ministers, had misused their position for furthering the prospects of the returned candidate by telephoning large number of electors from their ministerial telephones. No witness was produced to prove these allegations. Telephone records and bills were summoned and produced in Court but no effort was made to connect the telephone records with the Ministers and the electors, who are alleged to have been contacted. There is no evidence regarding the electors who are alleged to have been called by the above named Ministers at their official residences and offices. No evidence was led on the allegation that Shri V. V. Giri sounded one of the Ministers to influence any particular electors who were found not amenable to his influence or persuasions. We must hold these allegations not proved.

216. Regarding the allegations in para 13 (c) (v), para 13 (c) (vi) and para 13 (c) (vii), we did not allow any evidence to be taken on the points because we were of the view that even if they were accepted, the allegations did not amount to undue influence. It seems to us that the threats indicated in those paras were too fanciful and remote and they could not constitute any attempt to interfere with the electoral rights of the electors.

217. It was stated in para 13 (c) (xiii) that

"on August 6, 1969 the U. P. Congress Committee President, Shri Kamlapati Tripathi and Shri C. B. Gupta, Chief Minister, jointly addressed a meeting of the Congress M. L. As. and appealed for solid backing for Shri Reddy. But when undue influence of the scare reached them they changed their stand. On August 13, 1969, Shri Kamlapati Tripathi also pleaded for freedom to vote. The same was the fate of the other State leaders".

According to Shri Kamlapati Tripathi, R. W. 61, he had issued an appeal, Ex. P74, on August 12, 1969, to all Congress legislators of the U. P. State Legislative Assembly, asking them to cast their vote in favour of Shri Sanjiva Reddy. He gave reasons in Ext. P74 why this should be done. But then he changed his stand. He gave the following explanation in answer to the question:

"After issuing this appeal did you change your position in relation to the Presidential election"

"Well, I may say that I made a choice. The letters to the Congress President of that time, Shri Nijalingappa, written by Jagivan Ram and Fakhruddin Ali Ahmad, were published in the papers on the 12th of August, if I remember the date correctly, in which the demand to sanction the freedom to vote was published. I also made a request to the Congress President to allow this freedom of vote in view of the serious situation developing within the organisation regarding this question, and I requested that by sanctioning that freedom of vote, perhaps, it would be possible to maintain the unity and avoid disruption in the organization".

He further added:

"It was, perhaps, on the 14th evening. And then I saw very clearly that on this issue a split was going to take place in the organization. So, when the organization was going to be divided, as I saw it, I thought that I should make a choice of my own self as to where I should belong, and I made that choice."

It seems to us that no connection has been proved between the change in his stand and the alleged scare mentioned in sub-para 13 (c) (xiii).

218. In conclusion we hold the pamphlet was sent by post. Further, the pamphlet was distributed in the Central Hall of Parliament. This distribution itself constitutes undue influence within S. 18(1) (a) of the Act. It is, however, not proved that this pamphlet was distributed by workers of the respondent, or with the connivance of the returned candidate. We further hold that it has not been proved that the result of the election has been materially affected by the distribution of the pamphlet. The rest of the allegations either do not amount to undue influence or were not proved.

Issue No. 7 in E. P. No. 1/1969, Issue No. 9 in E. P. No. 4/1969 and Issue No. 11 in E. P. No. 5/1969

What relief, if any, are the petitioners entitled to

219. The petitioners are not entitled to any relief as no ground has been made out for declaring the election of the respondent to be void.

220. In our order dated May 11, 1970, we had directed that the parties will bear their own costs. We passed this order regarding costs because we were satisfied that the pamphlet had been sent by post and distributed in the Central Hall and this justified the petitioners in bringing the two main petitions. Most of the evidence which was led in Court dealt with the question of the distribution of the pamphlet. Further, as pointed out in the judgment, a number of witnesses have not told the whole truth. As a matter of fact we were distressed to see truth being sacrificed at the altar of political advantage by these witnesses.

Bhargava, J.-

221. These four election petitions all challenge the election of the President of India for which polling was help on the 16th August, 1969, and the result of which was declared on the 20th August, 1969. The petitioners in Election Petitions Nos. 1 and 3 of 1969 were candidates at the election. The nomination papers of both these petitioners were rejected by the Returning Officer. The petitioners in the other two Election Petitions Nos. 4 and 5 of 1969 were electors for the election of the President. The successful candidate, Shri V. V. Giri, is the sole respondent in Election Petitions Nos. 1, 4 and 5 of 1969, while, in Election Petition No. 3 of 1969, he was impleaded as respondent No. 2 and the Union of India, through the Election Commission, as respondent No. 1. In this judgment, the reference to respondent will be to the successful candidate, Shri V. V. Giri.

222. The election was occasioned by the demise of the then President of India on the 3rd May, 1969. The Election Commission issued a notification under S. 4 of the Presidential and Vice-Presidential Elections Act No. XXXI of 1952 (hereinafter referred to as "the Act") appointing the 24th July, 1969, as the last date for filing nomination papers. The date for scrutiny of the nomination papers was 26th July, 1969, and the last date for withdrawal of nominations was the 29th July, 1969. The polling was fixed for the 16th August, 1969.

223. 24 nomination papers were filed by the last date for filing nominations. The scrutiny took place on 26th July, 1969, in which the Returning Officer rejected 9 nomination papers, including the nomination papers of the petitioners in Election Petitions Nos. 1 and 3 of 1969. He accepted the nomination papers of 15 candidates. None of the 15 candidates withdrew his nomination by 29th July, 1969, the last date for withdrawal. At the poll on 16th August, 1969, consequently, there were these 15 candidates. Counting of votes took place up to the 20th August, 1969, when the result was declared and the respondent, who was one of the candidates whose nomination had been accepted by the Returning Officer, was declared elected. These election petitions have been filed by various persons, as enumerated above challenging this election of the respondent.

224. Various grounds have been taken in the pleadings in these election petitions for challenging the validity of the election of the respondent which, briefly described, are:-

(1) That the nomination papers of candidates Shri Shiv Kirpal Singh, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly rejected by the Returning Officer;

(2) That the nomination papers of the respondent were wrongly accepted by the Returning Officer;

(3) That the nomination papers of Shri Rajbhoj Pandurang Nathuji, Shri Santosh Singh Kachhwaha, Shri Babu Lal Mag and Shri Ram Dulare Tripathi were wrongly accepted by the Retruning Officer;

(4) That the offence of undue influence had been committed at the election by the respondent and his supporters with the connivance of the respondent;

(5) That the result of the election had been materially affected by the commission of offence of undue influence by persons other than the respondent without his connivance;

(6) That the offence of bribery at the election had been committed by the respondent and his supporters with his connivance;

(7) That the result of the election had been materially affected by the Commission of the offence of bribery by persons other than the respondent;

(8) That Part III and Section 21 of the Act are ultra vires the Constitution as well as Rules 4 and 6 (3) (e) of the Presidential and Vice-Presidential Election Rules, 1952 (hereinafter referred to as "the Rules") promulgated under Section 21 of the Act are ultra vires the Constitution and the Act;

(9) That the elected Members of the Legislative Assemblies of the Union Territories were entitled to be included in the Electoral College for the election of the President and their wrongful non-inclusion had materially affected the result of the election, as well as it had violated Article 14 of the Constitution; and

(10) That the petitioners were entitled to dispute the election even on grounds other than those mentioned in Section 18 of the Act, viz., that the respondent or any person with his connivance had printted, published and distributed a pamphlet containing scurrilous attacks against the personal and moral character of one of the candidates, Shri N. Sanjiva Reddy, which were false.

225. The detailed fact relating to these grounds will be more conveniently mentioned when dealing with the various issues framed on the basis of these pleading and, to avoid repetition, they are not being mentioned at this stage. On these pleadings, the following issues were framed in the various election petitions: -

Election Petition No. 1 of 1969.

1. Whether the nomination papers of the petitioner, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly rejected as alleged in paragraphs 5 (a) and (b), 6 and 7 of the petition

2. Whether the nomination papers of the respondent were wrongly accepted as alleged in paragraphs 5 (c) and 8 of the petition

3. Whether the nomination papers of Shri Rajbhoj Pandurang Nathuji and Pandit Babu Lal Mag were wrongly accepted as alleged in paras 5 (d) and 9 of the petition

4. (a) Whether the elected members of the Legislative Assemblies of the Union Territories were entitled to be included in the Electoral College for the election of the President

(b) Whether the non-inclusion of the members of the Legislative Assemblies of the Union Territories in the Electoral College amounts to non-compliance with the provisions of the constitution If so, whether the result of the election has been materially affected by such non-compliance

(c) Whether the alleged non-compliance with the provisions of the Constitution has violated Article 14 of the Constitution

5. Whether Section 21 of the Act is ultra vires the Constitution of India

6. Whether Rules 4 and 6 (3) (e) of the Rules are ultra vires the Constitution and the rule-making power of the Central Government

7. What reliefs, if any, is the petitioner entitled to

Election Petition No. 3 of 1969.

1. Whether the nomination paper of Shri Phul Singh, the petitioner, was wrongly rejected

2. What relief, if any, is the petitioner entitled to

Election Petition No. 4 of 1969.

1. Whether the nomination papers of Shri Shiv Kirpal Singh, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly rejected, as alleged in paragraphs 8 (a) and 9 (a), (b) and (c) of the petition

2. Whether the nomination papers of Shri Rajbhoj Pandurang Nathuji, Pandit Babu Lal Mag and Dr. Ram Dulare Tripathi were wrongly accepted as alleged in paragraphs 8 (b) and 10 (a), (b) and (c) of the petition

3. Whether the nomination papers of the respondent were wrongly accepted as alleged in paragraphs 8 (c) and 11 of the petition

4. (a) Whether all or any of the allegations made in paragraphs 8 (e) and 13 (a) to (m) of the petition constitute in law an offence of undue influence under Section 18 (1) (a) of the Act

(b) whether the said allegations made in paragraphs 8 (e) and 13 (a) to (m) are true and proved

(c) In the event of these allegations being proved and constituting undue influence-

(i) whether the returned candidate has committed the offence of undue influence

(ii) whether the offence of undue influence was committed by his workers, and if so, with his connivance

(iii) whether the offence of undue influence was committed by others without his connivance, and if so, whether that has materially affected the result of the election

5. Whether Part III and Section 21 of the Act are ultra vires the Constitution of India

6. Whether Rules 4 and 6 (3) (e) of the Rules are ultra vires the Constitution and the rule-making power of the Central Government

7. (a) Whether the elected members of the Legislative Assemblies of the Union Territories were entitled to be included in the Electoral College for the election of the President

(b) If so, whether the non-inclusion of the members of the Legislative Assemblies of the Union Territories in the Electoral College amounts to non-compliance with the provisions of the Constitution If so, whether the result of the election has been materially affected by such non-compliance

(c) Whether the alleged non-compliance with the provisions of the Constitution has violated Article 14 of the Constitution

8. (a) Whether the petitioners are entitled to dispute the election of the respondent on grounds other than those mentioned in Section 18 of the Act

(b) If Issue No. 8 (a) is decided in favour of the petitioners-

(i) whether the respondent or any person with his connivance printed, published and distributed the pamphlet at Annexure A-37 to the petition

(ii) Whether the pamphlet at Annexure A-3 contained any false statement of facts relating to the personal character and conduct of Shri N. Sanjiva Reddy, a candidate at the election and other persons named in the pamphlet

(iii) whether the persons found responsible for publishing the pamphlet believed the statements made therein as true or had reason to believe them to be true

(iv) whether the pamphlet was published with the object of prejudicing the prospects of the election of Shri Sanjiva Reddy and furthering the prospects of the election of the respondent

(v) whether the election of the respondent is liable to be declared void on this ground

9. What reliefs, if any, are the petitioners entitled to

Election Petition No. 5 of 1969,

1. Whether the nomination papers of Shri Shiv Kirpal Singh, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly rejected, as alleged in paragraphs 8 (a) and 9 (a), (b) and (c) of the petition

2. Whether the nomination papers of Shri Rajbhoj Pandurang Nathuji, Pandit Babu Lal Mag and Dr. Ram Dulare Tripathi were wrongly accepted as alleged in paragraphs 8 (b) and 10 (a), (b) and (c) of the petition

3. Whether the nomination papers of the respondent were wrongly accepted as alleged in paragraphs 8 (c) and 11 of the petition

4. (a) Whether all or any of the allegations made in paragraphs 8 (e) and 13 (a) to (m) of the petition constitute in law an offence of undue influence under Section 18 (1) (a) of the Act

(b) whether the said allegations made in paragraphs 8 (e) and 13 (a) to (m) are true and proved

(c) In the event of these allegations being proved and constituting undue influence-

(i) whether the returned candidate has committed the offence of undue influence

(ii) whether the offence of undue influence was committed by his workers, and if so, with his connivance

(iii) whether the offence of undue influence was committed by others without his connivance, and if so, whether that has materially affected the result of the election

5. Whether Part III and Section 21 of the Act are ultra vires the Constitution of India

6. Whether Rules 4 and 6 (3) (e) of the Rules are ultra vires the Constitution and the rule-making power of the Central Government

7. (a) Whether the elected members of the Legislative Assemblies of the Union Territories were entitled to be included in the Electoral College for the election of the President

(b) If so, whether the non-inclusion of the members of the Legislative Assemblies of the Union Territories in the Electoral College amounts to non-compliance with the provisions of the Constitution If so, whether the result of the election has been materially affected by such non-compliance

(c) Whether the alleged non-compliance with the provisions of the Constitution has violated Article 14 of the Constitution

8. (a) Whether the petitioners are entitled to dispute the election of the respondent on grounds other than those mentioned in Section 18 of the Act

(b) If Issue No. 8 (a) is decided in favour of the petitioners-

(i) whether the respondent or any person with his connivance printed, published and distributed the pamphlet at Annexure A-37 to the petition

(ii) Whether the pamphlet at Annexure A-3 contained any false statement of facts relating to the personal character and conduct of Shri N. Sanjiva Reddy, a candidate at the election and other persons named in the pamphlet

(iii) whether the persons found responsible for publishing the pamphlet believed the statements made therein as true or had reason to believe them to be true

(iv) whether the pamphlet was published with the object of prejudicing the prospects of the election of Shri Sanjiva Reddy and furthering the prospects of the election of the respondent

(v) whether the election of the respondent is liable to be declared void on this ground

9. Whether the respondent or any other person with his connivance committed the offence of bribery as alleged in paragraph 15 of the petition

9A. Whether the allegations in para. 15 constitute bribery within the meaning of the Act

10. Whether the offence of bribery was committed at the election by any other person without the connivance of the respondent as alleged in paragraph 15 of the petition, and if so, whether it materially affected the result of the election

11. What reliefs, if any, are the petitioners entitled to

FINDINGS

Issue No. 5 of Election Petitions Nos. 1, 4 and 5 of 1969.

226. Under this issue in Election Petition No. 1 of 1969, the only point raised relates to the validity of Section 21 of the Act, while, in the other two election petitions Nos. 4 and 5 of 1969, the validity of Part III of the Act as a whole is also challenged. It was contended that Part III of the Act is ultra vires Article 71 (1) of the Constitution on the ground that it purports to curtail the jurisdiction conferred on the Supreme Court to enquire into and decide all doubts and disputes arising out of or in connection with the election of a President or Vice-President by laying down certain limitations, such as the grounds on which only the election of a President or Vice-President can be challenged in an election petition. The question of validity of the Act was considered by this Court in Dr. N. B. Khare v. Election Commission of India, 1958 SCR 648 [LQ/SC/1957/103] = (AIR 1958 SC 139 [LQ/SC/1957/103] ), where the Court dealt with the contention that the Act and the Rules framed thereunder are void on the ground that they derogate from the jurisdiction of the Supreme Court to enquire into and decide all disputes and doubts arising out of or in connection with the election of the President or the Vice-President. This proposition was supported by the argument that, under Section 18 of the Act, the election could be set aside only on certain grounds and that, further, under clause (b), it could be done only if the result of the election is shown to have been materially affected and that these are restrictions on the jurisdiction conferred by Article 71 (1) and are ultra vires. The Court held:

"Article 71 (1) merely prescribes the forum in which disputes in connection with the election of the President and Vice-President would be enquired into. It does not prescribe the conditions under which the petition for setting aside an election could be presented. Under Article 71 (3), it is Parliament that is authorised to make law for regulating any matter relating to or connected with the election of the President or Vice-President, and the Act has been passed by Parliament in accordance with this provision. The right to stand for election and the right to move for setting aside an election are not common law rights. They must be conferred by statute and can be enforced only in accordance with the conditions laid down therein. The contention that the Act and the Rules derogate from the jurisdiction of the Supreme Court under Article 71 (1) must accordingly be rejected."

The argument advanced was that the Court, in giving that decision, incorrectly proceeded on the basis that Article 71 (1) merely prescribes the forum for the decision of doubts and disputes arising out of or in connection with the election of a President and Vice-President, and ignored the circumstance that Article 71 (1) actually confers jurisdiction on the Supreme Court which jurisdiction cannot be curtailed by a parliamentary law passed under Article 71 (3) as the power of Parliament to pass the law is subject to the provisions of the Constitution, including the provision contained in Article 71 (1).The distinction sought to be drawn has no force at all. In that case, the Court specifically dealt with the argument that Article 71 (1) confers jurisdiction on the Supreme Court and gave its decision after considering this aspect. In any case, even if the argument advanced is accepted that Article 71 (1) defines the jurisdiction of the Supreme Court, the manner in which that jurisdiction is to be exercised can only be regulated by an Act of Parliament passed in exercise of its power under Article 71 (3). In exercise of that power to regulate all matters relating to or connected with the election of a President or Vice-President, Parliament clearly had the power of laying down the grounds on which the election can be challenged and set aside, in addition to other matters relating to the election.

227. In this connection, learned counsel also wanted to draw an inference from the provision in Article 329 (b) of the Constitution which lays down that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. The argument was that, in this Article, there was specific mention of a law made for calling in question an election by an election petition, whereas there is no such corresponding provision in Article 71 of the Constitution. The argument advanced is clearly misconceived. In the case of elections to either House of Parliament or to the House or either House of the Legislature of a State, Parliament exercises powers to make law with respect to all matters relating to or in connection with the election under Article 327 and not under Article 329 (b). Article 329 (b) is a provision which lays down a limitation on the manner in which an election can be called in question, while the procedure for calling in question the election,as well as the grounds on which the election can be called in question, can only be laid down by Parliament by a law passed under Article 327. In the case of Article 71, it appears that no need was felt of making a provision similar to Article 329 (b) when Article 71 (1) itself laid down the limitation that all doubts and disputes arising out of or in connection with the election of a President or Vice-President are to be enquired into and decided by the Supreme Court whose decision shall be final. This limitation does not affect or limit the power of Parliament to regulate matters relating to filing of election petitions in the Supreme Court and of the grounds on which the elections can be challenged when the Supreme Court exercises its jurisdication under Article 71 (1). In these circumstances, the argument that Part III of the Act is ultra vires Article 71 (1) of the Constitution must be rejected.

228. So far as the validity of Sec. 21 of the Act is concerned, it was challenged on the ground that the power of making rules suffers from the vice of excessive delegation of legislative powers inasmuch as even essential matters of policy are left to be prescribed by rules by the Government and there are no guiding principles, so that the power can be exercised arbitrarily. It was further stressed that, in the Act, no provision similar to Section 169 (3) of the Representation of the People Act, 1951 or Section 28 (3) of the Representation of the People Act, 1950, was included by Parliament so as to require that the Rules framed under Section 21 of the Act should be laid before each House of Parliament and that the Rules should be subject to modifications or annulment by Parliament. It is not possible to hold that Section 21 suffers from any such defects.Parliament laid down the essential matters of policy relating to elections, including election petitions, in the Act itself and, thereafter, in Section 21, delegated the power of making rules to the Central Government, subject to two principles of guidance. One is that the Rules are to be made after consulting the Election Commission, and the second is that the Rules must be such as are needed for carrying out the purposes of the Act. This second limitation clearly requires that the Government, in making Rules, has to ensure that the Rules are all required for carrying out the purposes of the Act; and that itself is a sufficient limitation on the exercise of that power arbitrarily by the Government.In Part II of the Act, the Legislature has laid down the essential regulations for holding the elections, and in Part III, similarly, the essential matters relating to filing of election petitions and their decision, including the grounds on which the elections can be challenged, have been prescribed by Parliament itself. It is in order to give effect to these principles laid down by Parliament itself in the Act that the Government is to exercise its power of making rules. Such power being already limited by the purposes of the Act cannot be held to be unguided or even arbitrary, even though Parliament did not choose to lay down the requirement that the Rules framed must be laid on the table of the two Houses of Parliament and should be subject to modification or annulment within a specified period.In fact, Parliament all the time has the power of altering the Rules by amending the Act itself in case it disapproves of any of the Rules made by the Government, while any Rule, which is shown to have been made in contravention of the provisions of the Act, or for any reason other than to give effect to the purposes of the Act, would be declared void by the Court not on the ground that there was excessive delegation of legislative power, but that it goes beyond the scope of the power conferred on the Government under Section 21 of the Act. Section 21 of the Act itself cannot, therefore, be held to be void on any ground:

Issue No. 6 of Election Petitions Nos. 1, 4 and 5 of 1969.

229. Under this issue, the petitioners challenged the validity of Rule 4 (1) of the Rules to the extent that it requires that a certified copy of the entry relating to the candidate in the electoral roll for the Parliamentary constituency in which he is registered must accompany the nomination paper, and the validity of the consequential provision in Rule 4 (2) which lays down that a nomination paper, to which the certified copy referred to in sub-r. (1) of this Rule is not attached, shall be rejected. This part of Rule 4 (1) is challenged on two grounds. One is that such a requirement is beyond the rule-making power of the Government under Section 21 of the Act, and the second is that the Rule is arbitrary and unreasonable inasmuch as it lays down only one single manner of showing that a candidate is an elector for a Parliamentary constituency by filing a certified copy of the entry, ruling out all other methods, such as filing of the published electoral roll itself.On the face of it, the first ground raised has no force. Clause (d) of sub-section (2) of Section 21 lays down that the Rules made under that section may, in particular, and without prejudice to the generality of the power granted under sub-section (1), provide for the form and manner in which nominations may be made and the procedure to be followed in respect of the presentation of nomination papers; and the requirement that a certified copy of the entry, showing that the candidate being nominated is an elector for a Parliamentary constituency which alone makes him eligible to stand as a candidate for the office of President or Vice-President, must accompany the nomination paper falls squarely within this clause. The requirement relates to the manner of proving that the candidate is an elector in a Parliamentary constituency. In any case, this provision in Rule 4 (1) would be fully covered by Section 21 (1) of the Act inasmuch as the requirement is for no other purpose except of ensuring a smooth and proper election to the office of the President or Vice-President which object can be achieved by enabling the Returning Officer to ensure that candidates, whose nominations are accepted by him, are eligible for election.In this connection, reference was made to the decision of this Court in Ranjit Singh v. Pritam Singh, (1966) 3 SCR 543 [LQ/SC/1966/47] = (AIR 1966 SC 1626 [LQ/SC/1966/47] ), where the Court had to deal with Section 33 (5) of the Representation of the People Act, 1951, and the Court held:-

"The object of this provisions obviously is to enable the returning officer to check whether the person standing for election is qualified for the purpose. The electoral roll of the constituency for which the returning officer is making scrutiny would be with him, and it is not necessary for a candidate to produce the copy of the roll of that constituency. But where the candidate belongs to another constituency, the returning officer would not have the roll of that other constituency with him and therefore the provision contained in Section 33 (5) has been made by the legislature to enable the returning officer to check that the candidate is qualified for standing for election. For that purpose the candidate is given the choice either to produce a copy of the electoral roll of that other constituency, or of the relevant part thereof or of a certified copy of the relevant entries in such roll before the returning officer at the time of the scrutiny, if he has not already filed such copy with the nomination paper."

This decision clearly supports the view that the requirement in Rule 4 (1) that a certified copy of the entry showing that the candidate is an elector in a Parliamentary constituency is necessary in order to enable the Returning Officer to check whether the candidate is eligible for nomination and election. The manner in which the Returning Officer should be given the necessary information is a matter of detail relating to nomination and, consequently this Rule is within the scope of the power conferred on the Central Government to make Rules for giving effect to the purposes of the Act.

230. Based on this very decision cited above, learned counsel for the petitioners urged that, in Section 33 (5) of the Representation of the People Act, 1951, the requirement is the production of either a copy of the electoral roll, or of the relevant part thereof, or a certified copy of the relevant entry in such roll, while, in Rule 4 (1) of the Rules, the only manner of satisfying the Returning Officer about eligibility permitted is the filing of a certified copy of the entry and, consequently, the requirement in Rule 4 (1) is arbitrary and unreasonable. It has to be kept in view that the election for the office of the President or Vice-Prsident does not stand on the same footing as the election for membership of a House of Parliament or a House of the State Legislature. In the latter case the Returning Officer usually has the electoral roll of the constitutency, from which election is to be held, with him and, by and large, the candidates standing from a constitutency are enrolled as electors in the same constitutency. Provision had to be made in Section 33 (5) of the Representation of the People Act, 1951, for those limited cases where the candidate stood for election from a constitutency different from the one in which he is enrolled as an elector. In the case of election for the office of President or Vice-President, any elector enrolled in the electoral roll of any Parliamentary constitutency in India is entitled to stand as a candidate, and it is clear that the electoral rolls of those constituencies will not be with the Returning Officer. In every case, therefore, it would be necessary that some evidence should be available with the Returning Officer so as to enable him to ensure that the candidate is eligible for election. In order to make certain that the election proceeds smoothly and to minimise the chances of disputes or doubts arising, the requirement laid down in Rule 4 (1) is that a certified copy of the entry alone should be accepted as the proper proof for showing eligibility of the candidate. Electoral rolls are subject to revision from time to time. At the general elections, they are fully revised and, then, subsequent alterations are made in them as occasions arise. The election to the office of a President or Vice-President may not coincide with or be very close to the time when there is general revision of the electral rolls, so that the electoral rolls printed and published nearabout the time of general elections may be out of date by the time the election for the office of a President or Vice-President is held.The published electoral roll may, therefore, be misleading if it is allowed to be filed before the Returning Officer to show eligibility in the case of a Presidential or Vice-Presidential election. That seems to be the reason why Rule 4 (1) lays down that a certified copy of the entry alone will be the proper manner of satisfying the Returning Officer of the eligibility of the candidate.The original electoral roll, of course, cannot be produced as there is only one original which is retained either by the Electoral Registration Officer or in the office where the Chief Electoral Registration Officer directs it to be preserved in accordance with the Rules framed under the Representation of the People Act, 1950. In such circumstances, if the rule-making authority did not consider it safe to rely on printed copies of the electoral rolls issued generally at the time of general elections to Parliamentary constitutency, it cannot be said that the authority acted arbitrarily or unreasonably. The smoothness of the elections could only be ensured by requiring the filing of a certified copy of the entry which would be immune from any doubt or challenge.The mere fact that the requirement of R. 4 (1) of the Rules differs from the requirement of Section 33 (5) of the Representation of the People Act, 1951, cannot be a ground for holding that Rule 4 (1) lays down an unreasonable restriction, so that this Rule must be held to be valid. Rule 4 (2), which prescribes the consequence for non-compliance with the requirement of Rule 4 (1), must also be held to be valid as it is intended merely to make the valid Rule 4 (1) effective.

231. The next challenge is to the validity of Rule 4 (3) and the consequential Rule 6 (3) (e) of the Rules. Rule 4 (3) lays down that no elector shall subscribe, whether as proposer or as seconder, more than one nomination paper at any election, and Rule 6 (3) (e) is the consequential provision laying down that the Returning Officer shall reject a nomination paper on the ground that the proposer or seconder has subscribed, whether as proposer or seconder, another nomination paper received earlier by the Returning Officer at the same election. The validity of Rule 4 (3) has been impugned on the ground that it is in derogation of the rights conferred on a candidate or on electors by section 5 (2) of the Act. Section 5 reads as follows :-

"5 Nomination of candidates. - (1) Any person may be nominated as a candidate for election to the office of President or Vice-President if he is qualified to be elected to that office under the Constitution.

(2) Each candidate shall be nominated by a nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nomination and by two electors as proposed and seconder."

The argument is that every candidate, under Section 5 (2), has a right to be nominated by any two electors as proposer and seconder without any limitation as to who those two electors are and irrespective of those electors having done any act, such as having proposed or seconded another candidate. It is also urged that this provision confers a right on every elector to subscribe a nomination paper as proposer or seconder without any limitation as to the number of nomination papers which can be so subscribed by him.

232.The submision that Section 5 (2) should be read as conferring any right either on the candidate or on the electors in respect of signing of nomination papers cannot be accepted. On the face of it, the provision made in Section 5 relates to procedural matters leading up to the exercise of electoral rights of a candidate or an elector.The filing of nomination paper only regulates the manner in which a candidate is to signify the fact that he desires to be elected, and the provision for the nomination paper being signed by two electors as proposer and seconder is meant only to indicate to the electors in general that the candidate is being put forward for election by at least two electors. The nomination paper also serves the purpose of informing the Returning Officer who are the candidates, so that appropriate steps can be taken for holding the poll by having ballot papers printed and appropriate number of ballot boxes provided. The language of Section 5 (2) itself shows that it was while prescribing the manner of subscribing a nomination paper that Parliament laid down that it should be subscribed by the candidate himself as assenting to the nomination and by two electors as proposer and seconder. Had there been an intention to confer a right on any of them, the language would have been different giving such indication by laying down what the candidate and the electors are entitled to do in respect of a nomination paper.Obviously, Section 5 only lays down the essential ingredients of the process of nomination, leaving the details of the manner of nomination to be filled up by Rules made by the Government under Section 21 of the Act. Rule 4 (3), which requires that no elector shall subscribe, whether as proposer or seconder, more than one nomination paper at any election, is, thus, supplementary to Section 5 (2) as containing a more detailed direction in respect of filing of nomination papers.

233. In this connection learned counsel for the petitioners referred to the decision of this Court in Amolak Chand v. Raghuveer Singh, (1968) 3 SCR 246 [LQ/SC/1968/49] = (AIR 1968 SC 1203 [LQ/SC/1968/49] ), in which a similar provision contained in Section 33 of the Representation of the People Act, 1951, as amended by the Amending Act 27 of 1956, came up for consideration. Prior to the Amending Act 27 of 1956, Section 33, dealing with this subject, specifically laid down that any person, whose name is registered in the electoral roll of the constitutency and who is not subject to any disqualification mentioned in Section 16 of the Representation of the People Act, 1950, may subscribe as proposer or seconder as many nomination papers as there are vacancies to be filled, but no more; and there was also a consequential provision in Section 36 (7) (b) which laid down that, where a person has subscribed, whether as proposer or seconder, a larger number of nomination papers than there are vacancies to be filled, those of the papers so subscribed which have been first received, up to the number of vacancies to be filled, shall be deemed to be valid. These provisions were omitted by the Amending Act 27 of 1956, and thereafter, the language of Section 33 became similar to that of Section 5 (2) of the Act inasmuch as it required the candidate to deliver to the Returning Officer a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. The question arose whether, if a single elector signed more than one nomination paper as a proposer, any of the nomination papers could be held to be invalid. The Court held that, after the enactment of the Amending Act 27 of 1956, there was no ban in Section 33 on an elector signing more than one nomination paper and, consequently, if any elector signed more than one nomination paper, all the nomination papers would be valid. That case is, thus, limited to the question whether there is or is no ban on an elector signing more than one nomination paper as a propsoser. It did not lay down that every elector had been conferred a right to sign the nomination paper of more than one candidate as a proposer. While no right can be read as having been conferred by such a provision, there will be no bar to a rule being made by the rule-making authority limiting the number of nomination papers to be signed by each elector as a proposer or a seconder. In fact, Rules are always meant to fill in details of procedure in respect of which the Act does not contain specific provisions. The Rules are meant to supplement the provisions of the Act and to deal with matters incidental, in respect of which there is no definite provision made in the Act itself.The fact that there is no ban in Section 5 (2) of the Act on an elector signing more than one nomination paper as a proposer or a seconder does not, therefore, mean that Rule 4 (3) of the Rules could not have been competently made by the Government. Rule 4 (3), on the face of it, contains a very reasonable direction.If there is only one vacancy for which election is to be held, an elector can reasonably be expected to nominate only one candidate as proposer and put him forward before the other electors as a suitable person to be chosen. Similarly, when seconding a nomination paper, an elector indicates his preference for that candidate to the general electorate which is to cast votes at the election.If the indication of such choice is restricted to as many candidates as there are vacancies, the provision, is, on the face of it, salutary and conducive to proper election.

234. The historical background of the Rules relating to elections in India also bears out that such a provision has always been considered desirable. The earliest Rules that have been brought to our notice are the Electoral Rules and Regulations made for elections to the Legislative Assembly at the Centre and to the Legislative Councils of Provinces under the Government of India Act. The Rules, as revised up to 25th August, 1934, made by the Central Government, contain a provision in Rule 11(3) of Part IV, similar to that of Section 5 of the Act, by laying down that the nomination paper shall be subscribed by the candidate himself as assenting to the nomination and by two persons as proposer and seconder whose names are registered on the electoral roll of the constituency. This is followed by sub-rule (4) which limits the number of nomination papers to be subscribed as proposer or seconder by an elector to the number of vacancies to be filled but no more. These two requirements having been laid down by the Rules, the further procedure was governed by the Regulations made for each Province for conducting the elections in that Province even in respect of the Central Legislative Assembly. In the Presidency of Madras, Regulation 7 (1) (iii) empowered the Returning Officer to refuse any nomination on the ground that there has been a failure on the part of the candidate or his proposer or seconder to comply with any of the provisions of Rule 11; and it was in exercise of this power that the Returning Officer could reject the nomination paper signed by an elector or proposer in excess of the unmber of vacancies. For the presidency of Bombay, a similar provision was made in Regulation 3 of the Legislative Assembly (Bombay) Electoral Regulations dated 13th September, 1923, for rejection of the nomination paper by the Regurning Officer. The corresponding provision for the Province of Bengal was contained in Regulation 20; for United Provinces in Regulation 9; for Punjab in Regulation 4; for Burma in Regulation V; for Bihar and Orissa in Regulation 24; for the Central Provinces in Regulation 4; and for Delhi in Regulation 5. All these Regulations were made under Rule 15 of the Legislative Assembly Electoral Rules.Thus, the principle that an elector should not sign nomination papers as proposer or seconder in excess of the number of vacancies was observed throughout India. Similar provisions existed in the various Provinces in respect of elections to be held to the Legislative Councils of the Provinces. Later, when the Council of State came into existence after the Government of India Act, 1935,provision was made in Rule 11 (4) limiting the number of nomination papers, which could be subscribed by an elector as proposer or seconder, to the number of vacancies to be filled and no more. Even in the Representation of the People Act, 1951, when first enacted, there was a similar provision.The Act, with which we are concerned, was passed in 1952 in this state of legislation and it is obvious that Parliament, when enacting Section 5 left it to the rule-making authority to make detailed provisions of this nature.

235. It may also be mentioned that a similar provision exists in the Rules governing elections in England. The Act in question is the Representation of the People Act, 1949, and the Rules for Conduct of Elections were contained in the Second Schedule to that Act. Rule 8 (1) of the Second Schedule was similar to Section 5 (2) of the Act laying down that the nomination paper shall be subscribed by two electors as proposer and seconder, and by eight other electors as assenting to the nomination. Rule 8 (5) laid down the limitation that no person shall subscribe more than one nomination paper at the same election and, if he does, his signature shall be inoperative on any paper other than the one first delivered. The provision is not only similar, but it is significant that, when laying down the limitation in Rule 8 (5), the language used indicates that no right on an elector to subscribe as proposer and seconder any number of nominations was envisaged as having been conferred by Rule 8 (1). If we were to hold that Rule 8 (1), which is similar to Section 5 (2) of the Act, conferred a right on an elector to subscribe any number of nomination papers as proposer and seconder, Rule 8 (5) would have contained words indicating that it will override the provisions of Rule 8 (1). This could have been done either by making Rule 8 (1) subject to Rule 8 (5), or by stating in Rule 8 (5) that it shall prevail notwithstanding anything contained in R. 8 (1). There was, in fact, no need to use such qualifying words, because Rule 8 (1) could not be interpreted as conferring a right on an elector to subscribe more than one nomination paper as proposer or seconder, so that Rule 8 (5) was not a limitation on any right conferred by the earlier sub-rule.In these circumstances, it must be held that Rule 4 (3) of the Rules was validly made by the Government in exercise of its rule-making power under Section 21 of the Act. That Rule being valid, Rule 6 (3) (e) of the Rules, which is consequential, must also be held to be valid.

Issue No. 1 in Election Petitions Nos. 1, 4 and 5 of 1969.

236. These issues between them raise the question of the validity of the rejection of the nomination papers of three persons Shri Shiv Kirpal Singh, Shri Charan Lal Sahu and Shri Yogi Raj. The nomination paper of Shri Shiv Kirpal Singh was rejected on the ground that it was not accompanied by a certified copy of the entry relating to him in the electoral roll for the Parliamentary constituency in which he was registered. Instead, his nomination paper was accompanied by a few printed sheets purporting to be part of the electoral roll of that constituency containing his name as an elector. It has already been held above, when dealing with Issue No. 6, that Rule 4 (1), requiring that the nomination paper must be accompanied by a certified copy of the electoral roll containing the entry relating to the candidate is valid and mandatory. Since there was clear non-compliance with that Rule, the rejection of the nomination paper of Shri Shiv Kirpal Singh was correct and justified.

237. The nomination paper of Shri Charau Lal Sahu was rejected on the ground that he was less than 35 years of age on the date of nomination. The nomination paper was, no doubt, accompanied by a certified copy of the entry in the electoral roll in which his age was shown as 32 years on 1st January, 1966. The Returning Officer had some doubt whether Shri Charan Lal Sahu had completed the age of 35 years and, consequently, he asked Shri Charan Lal Sahu, who was present at the time of scrutiny, to state his date of birth. He gave in writing that his date of birth was 15th March, 1935. According to this date of birth given by Shri by Shri Charan Lal Sahu himself in his own handwriting to the Returning Officer, he was clearly below 35 years of age on the date of nomination. The nomination paper was rejected on this ground. The rejection is based on Shri Charan Lal Sahus own statement given before the Returning Officer, and it is significant that in none of these election petitions has any assertion been made that, in fact; the age of Shri Charan Lal Sahu was more than 35 years on the date of nomination. The only attempt made is to challenge the order of the Returning Officer on the ground that the entry in the electoral roll showed that he was qualified as a candidate, having attained the age of 35 years. That entry is of little value after Shri Charan Lal Sahus own statement in writing indicating that he was less than 35 years of age. While no election petitioner is prepared to assert and prove that Shri Charan Lal Sahu had in fact completed 35 years on the date of nomination, it has to be held that the rejection of his nomination paper was fully justified and correct.

238. So far as the rejection of the nomination paper of Shri Yogi Raj is concerned, his nomination paper was rejected on the ground that he had been proposed and seconded by the same electors who had proposed and seconded another candidate, Shri Rajbhoj Pandurang Nathuji, and the nomination of the latter was received earlier by the Returning Officer. The Returning Officer rejected the nomination paper by an order made in accordance with Rule 6 (3) (e) read with Rule 4 (3) of the Rules. The correctness of this order was challenged on the ground that these Rules are ultra vires the Act. In dealing with issue No. 6 it has already been held that these Rules are valid and are not in contravention of Section 5 (2) of the Act. The rejection of his nomination paper, based on these valid Rules, was justified and, consequently, it cannot be held that his nomination paper was wrongly rejected.

Issued No. 2 in Election Petitions Nos. 1 and 5 and Issue No. 3 in Election Petition No. 4/1969.

239. The acceptance of the nomination paper of the respondent has been challanged on the ground that his nomination paper was not accompanied by a certified copy of the entry relating to him in the Parliamentary constituency in which he was registered. After examining the certified copy filed, it is not possible to accept the submission, because, on the face of it, it is a certified copy of the electoral roll issued by the appropriate authority. These issues are, therefore, decided against the election petitioners.

Issue No. 3 in Election Petitions Nos. 1 and 5 and Issue No. 2 in Election Petition No. 4/1969.

240. Under these issues, the validity of the acceptance of the nomination papers of four candidates, Shri Rajbhoj Pandurang Nathuji, Shri Santosh Singh Kachhawaha, Pandit Babu Lal Mag and Dr. Ram Dulare Tripathi, was challenged. In Election Petition No. 5 of 1969, the nomination paper of Shri Rajbhoj Pandurang Nathuji was challenged on two grounds, but one of the grounds was given up, and the only ground, which was pressed and which was also common to other election petitions, was that the copy of the electoral roll, which accompanied his nomination paper was not certified by the appropriate officer. This submission was made on the wrong basis that the Rules required that the certified copy must be issued either by the Electoral Registration Officer or the Assistant Electoral Registration Officer. The copy was, in fact, issued by one Shri M. V. Madke with a rubber seal under it showing that he was functioning as Tehsildar, Poona City. It appears that the permanent Tehsildar of Poona City was the Assistant Electoral Registration Officer, but at the time of the issue of the copy, he happened to be absent and Shri M. V. Madke, who was Aval Karkun, was acting in his place. Since Shri M. V. Madke was acting in place of the Tehsildar, he was also in charge of the electoral rolls which were in his custody. He was further empowered to exercise all the powers given to the Tehsildar. He, therefore, was competent to issue the certified copy in two capacities, viz., (1) as exercising powers of the Tehsildar conferred on him while he was acting in place of the permanent Tehsildar and (2) in the capacity of custodian of the document of which the copy was required.There is nothing in the Rules framed under the Act, or under the Representation of the People Act, 1950 and Rules framed thereunder, requiring that a certified copy of the electoral roll must necessarily be issued by either an Electoral Registration Officer or an Assistant Electoral Registration Officer. Every government servant, who has custody of a document, is competent to issue certified copies of that document, so that the certified copy issued by Shri M. V. Madke was a valid and good copy and there was no reason for rejection of his nomination paper. It was rightly accepted.

241. In the case of Shri Santosh Singh Kachhwaha, the only ground pressed was that his nomination paper was signed by the proposer and the candidate on 16th July, 1969, while the seconder signed it on 21st July, 1969.Thereafter, the candidate himself presented this nomination paper to the Returning Officer on 23rd July, 1969. His case may be considered with that of Pandit Babu Lal Mag in which also the ground for challenging the validity of the nomination paper is similar. His nomination paper was signed by him on 18th July, 1969, while both the proposer and the second signed it on 21st July, 1969.Thereafter, Pandit Babu Lal Mag himself presented the nomination paper to the Returning Officer. The point raised was that, in one case, the seconder signed the nomination paper after the candidate, while, in the other case, both the proposer and the seconder signed after the candidate had done so.The nomination paper shows that the candidate, when signing, purports to "assent to this nomination". It was urged that a signature in token of such assent to that particular nomination must be made by a candidate after both the proposer and the seconder have signed.Reliance was placed in this connection on the decision in Harmon v. Park, (1881) 7 QBD 369. In that case, the question arose about the validity of a nomination paper of a candidate Mark Harmon which, when initially presented, had the name of William Ball as proposer, together with signatures of the seconder and eight burgesses as assenting parties to that nomination. The clerk, on looking at the burgess roll, found that the name of William Ball was on the list of electors, but it was noted in the margin "not entitled to vote here". At the time of presentation, one John Green, a duly enrolled burgess, happened to come into the office and, seeing the nomination paper signed by Ball, and knowing that the name of William Ball was not on the burges roll as a person entitled to vote struck out Balls signature and inserted his own name in lieu thereof. At that time, Ball the original proposer, the seconder and the assenting burgesses were not present. Green handed in his nomination paper to the town clerk. It was in these circumstances that the nomination paper was held to be invalid. Grove, J., held :-

"The argument for the appellant was that these eight persons assent to the nomination of the candidate as a proper person to be nominated; an argument which if carried to its full extent must involve the proposition that the assenting burgesses may subscribe a nomination paper with the names of proposer and seconder in blank. But the assents required by the Act are to the nomination in the form in which it is written so that any person assenting may first see who is proposer and seconder. It may well induce them to give their assent if they find that the proposer and seconder are good and responsible persons in whom they may trust. I think, therefore, that the nomination was bad, and the name of the appellant properly rejected as a candidate".

Lindley, J., agreeing with him said :-

"The Act of Parliament requires that the eight burgesses shall assent to the nomination. What then is the nomination in writing to which they assent The nomination consists in filling up the name of the candidate on the nomination form, with the signatures of the proposer and seconder. The argument for the petitioner comes to this, that the eight persons might sign even before the name of the candidate was on the nomination paper. This is not the kind of assent required by the statute. The nomination must precede the assent, the assent must not precede the nomination."

Thus, in that case, the nomination paper was held to be invalid, because the signature of John Green, who was ultimately the proposer, was put on the nomination paper after the seconder, the candidate and the eight assenting burgesses had all signed it. However, the point to be noticed is that, in that case, the invalidity was found because the circumstances in which John Green substituted his name as the proposer showed that the assenting eight burgesses had no knowledge at all that he had become the proposer, as they had only assented to the nomination signed by William Ball. John Green substituted his name for that of William Ball in the absence of the burgesses. On this ground, it was held that the nomination paper could not be held to contain in it the assent of the eight burgesses. That case is distinguishable from the present case.In the present case, when the candidates concerned signed in token of their assent before the proposers or the seconders had signed their nomination papers, the candidates knew that they were assenting to be put forward as candidates at the election and, subsequently, after the proposers and seconders had signed their nomination papers, they themselves took those nomination papers and presented them before the Returning Officer. Clearly, therefore, they indicated their assent to being nominated by the particular proposers and seconders, who signed their nomination papers, by taking the step, after their signatures, of carrying the nomination papers to the Returning Offcer and presenting them as valid nominations.

242. There is further the circumstance that, though, in England, in the particular circumstances of the case in (1881) 7 QBD 369 (supra), it was held that a nomination paper was invalid if signed by the proposer after it had been signed by eight burgesses in token of their assent, the law as to nominations in India has throughout been interpreted differently. As early as the year 1922, when also the provision in respect of signing of nomination papers was similar, it was held by the Election Tribunal in Jamuna Prasad v.Sri Krishna Prasad, (1864-1935) 2 Doabias E. C. at p. 7 Case No. 121 (1955 Edn.) that:

"there is not rule as to the order in which names should be signed. On the other hand, the subscription by the candidate is mentioned in the rule before that by the proposer and seconder. We should not read into the words of the rule any words which do not exist and say that the proposer and the seconder must sign their names before the subscription by the candidate himself; when the requirement is merely that the candidate must also subscribe to the paper as assenting to the nomination, that is to say, the naming of himself as a candidate for the constituency. What has been done by the petitioner does not offend the words or the spirit of the rule."

The Election Tribunal also took notice of the decision in (1881) 7 QBD 369 (supra) and distinguished it on the ground that that case could not apply where the subscription by the candidate himself and the making of signatures by the proposer and the seconder had only to be considered, while there was no question of assent of other persons like eight burgesses.

243. The same view was taken in the year 1924 by the Election Tribunal in the case of Prosanna Kumar Das Gupta v. Chittaranjan Das, (1864-1935) 2 Doabias E. C. at p. 73 Case No. 120 (1955 Edn.).In that case also, the Tribunal distinguished the decision in (1881) 7 QBD 369 (supra) and, in addition, referred to the decision in Cox v. Davies, (1898) 2 QBD 202. In the latter case, Grantham, J., had occasion to deal with a situation very similar to the one in the present case. He held:-

"The language of the present rule is not the same as that of the section upon which those cases were decided. It would require a good deal to convince me that there is anything wrong in a candidate filling his own name in after those of his proposer and seconder. In my own practical experience of elections it is a thing which is constantly done. If the signatures of the proposer and seconder were used for the purpose of filling in the name of a candidate that they did not intend, that would be another matter. (1881) 7 QBD 369 was a very different case from this".

In this case, the validity of the nomination paper was being challenged on the ground that the candidate had filled in his own name after the proposer and seconder had already signed it and, yet, it was held that the nomination paper was valid on the ground that there was nothing to show that the proposer and seconder did not intend to nominate that particular candidate. In the present case, there is nothing to show that the candidate did not intend to be nominated by the proposers and seconders who had signed their nomination papers after they had signed them in token of their assent. On the other hand, as indicated above, it must be held that the candidates actually signified their assent to being nominated by the proposers and seconders, who had signed earlier, by presenting the nomination papers themselves to the Returning Officer.

244. Another Election Tribunal, in the year 1946, arrived at the same decision in the case of Mahant Digvijai Nath v. Sri Prakash, (1935-51) Election Cases, at p. 147 case No. 24. In that case also, the candidate had signed the nomination paper before it was signed by the proposer and seconder. The Tribunal placed reliance on the decision in (1864-1935) 2 Doabias E. C. at p. 7 Case No. 121 (1955 Edn.) (supra) and held :-

"Even if it is assumed that strictly speaking the candidate must sign his name after the proposer and seconder have signed it, there is no direction in the rules that it should be so and that there is no "invalidating consequence" provided for in the rules in case this has not been done."

In fact, the Tribunal went to the extent of holding that :-

"It is not open to the returning officer to enquire in what order the signatures had been made so long as the signautres are not found to be not genuine or obtained by fraud."

In that case also, the Tribunal took notice of the two English decisions in (1881) QBD 369 (supra) and (1898) 2 QBD 202 (supra) and inferred that it cannot be held that there is any natural order in which nomination paper should be filled up and signed and, unless there is something specific in the Rules, the fact that a candidate gives his assent on the nomination paper before the proposer and seconder had signed it or before the other entries had been completed is of no consequence.Thus, when the Act was enacted in 1952, the law in India, as administered by various Election Tribunals, was clear that the order, in which signatures are made on a nomination paper by the candidate, the proposer and the seconder, is immaterial and no nomination paper would be invalid if the signatures are made by the candidate before the proposer and the seconder signed it. The Legislature, when enacting the Act, must be presumed to know that this was the law as interpreted in India and, consequently, when the language incorporated in Section 5 (2) of the Act was used, it must have been intended that nomination papers would not be invalid by reason of the candidate making his signature before the proposer and the seconder. Even subsequently, a similar provision in the Representation of the People Act, 1951, and the Rules framed thereunder for conduct of elections and election petitions, was interpreted in the same manner by the Election Tribunal in the case of Yamuna Prasad v. Jagdish Prasad Khare, (1957-1958) 13 ELR 1 (SC). Consequently, it cannot be held that, in the present case, the nomination paper of Shri Babu Lal Mag was invalid because he signed his nomination paper before it was signed by the proposer and seconder, or that the nomination paper of Shri Santosh Singh Kachhwaha was invalid because he signed his nomination paper before his second had signed it. The nomination papers of both these candidates, were therefore, rightly accepted.

245. So far as the nomination paper of Dr. Ram Dulare Tripathi is concerned, the allegation was that it did not appear to bear the signautre of the proposer and the seconder, because a mere look will make it clear ex facie that the whole of the nomination paper, including the signatures of the proposer, the seconder, and the candidate are in the handwriting of one person. This allegation was controverted by the Returning Officer in his counter-affidavit who has sworn that it did not appear to him that all the signatures were in one handwriting and that he was satisfied that the nomination paper had been properly proposed, seconded and signed. After his counter-affidavit, when the petition was argued, learned counsel for the petitioners did not press this issue and did not try to produce any evidence to show that the signatures of the proposer, the seconder, and the candidate were not genuine. Consequently, the acceptance of the nomination paper of Dr. Ram Dulare Tripathi was not invalid.

Issue No. 4 in Election Petition No. 1 of 1969 and Issue No. 7 in Election Petitions Nos. 4 and 5 of 1969.

246. The ground covered by these issues is sought to be raised on the basis of the provisions contained in Article 54 of the Constitution read with the definition of "State" contained in Clause (58) of Section 3 of the General Clauses Act, 1897. It was urged that, under Art. 54, the Electoral College consists of the elected members of both Houses of Parliament, and the elected members of the Legislative Assemblies of the States. Relying on the definition of "State" in Section 3(58) of the General Clauses Act, it is argued that Union Territories are also States and, consequently, the elected members of the Legislative Assemblies of the Union Territories must also be included in the Electoral College. Their omission is a material irregularity which vitiates this election.

247.There are two reasons why, on the face of it, this submission has to be rejected as untenable. Article 54, no doubt, lays down that all elected members of the Legislative Assemblies of the States are to be included in the electoral college; but the word "States" used in this Article cannot include Union Territories. It is true that, under Article 367, the General Clauses Act applies for interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India; but that Act has been applied as it stood on 26th January, 1950, when the Constitution came into force, subject only to any adaptations and modifications that may be made therein under Article 372.The General Clauses Act, as it was in 1950 and as adapted or modified under Article 372, did not define "State" so as to include a Union Territory. The Constitution was amended by the Constitution (Seventh Amendment) Act, 1956, which introduced Article 372-A in the Constitution permitting adaptations and modifications of all laws which may be necessary or expedient for the propose of bringing the provisions of the law into accord with the Constitution as amended by the Seventh Amendment Act, 1956.It was in exercise of this power under Article 372-A that Section 3 (58) of the General Clauses Act was amended, so that, thereafter, "States" as defined included Union Territories also. The new definition of "State" in Section 3 (58) of the General Clauses Act as a result of modifications and adaptation under Article 372-A would, no doubt, apply to the interpretation of all laws of Parliament, but it cannot apply to the interpretation of the Constitution, because Article 367 was not amended and it was not laid down that the General Clauses Act, as adapted or modified under any Article other than Article 372, will also apply to the interpretation of the Constitution. Since, until its amendment in 1956, Section 3 (58) of the General Clauses Act did not define "State" as including Union Territories for purposes of interpretation of Article 54, the Union Territories cannot be treated as included in the word "State".

248. The second reason why it must be held that members of Legislatures of Union Territories cannot form part of the electoral college under Article 54 is that that Article confines the electoral college to members of Legislative Assemblies of the States and there are no Legislative Assemblies in the Union territories.Under Article 168, for every State there is to be a Legislature which shall consist of the Governor, in certain States two Houses, and in some other States one House. The Article further lays down that where there are two Houses of Legislature; one is to be known as the Legislative Council and the other as the Legislative Assembly and, where there is only one House, it is to be known as the Legislative Assembly. On the face of it only members of Houses known as Legislative Assemblies under Article 168 can be members of the Electoral College under Article 54.In the case of Union Territories, the provision for Legislatures is contained in Article 239-A, but that Article does not mention that any House of the Legislature created for any of the Union Territories will be known as a Legislative Assembly. All that that Article lays down is that Parliament may, by law, create a body, whether elected, or partly nominated and partly elected, to function as a Legislature for the Union Territory. Such a Legislature created by Parliament is not a Legislative Assembly as contemplated by Article 168 or Article 54. Members of Legislatures created for Union Territories under Article 239-A cannot therefore, be held to be members of Legislative Assemblies of States. They were, therefore, rightly excluded from the electoral college, so that the issues are decided against the election petitioners.

Issues Nos. 1 and 2 in Election Petition No. 3 of 1969.

249. The nomination paper of Shri Phul Singh, petitioner in this election petition, was rejected on the ground that his nomination paper was not signed either by a proposer or a seconder, so that the nomination paper did not comply with the requirements of Section 5 (2) of the Act and was liable to be rejected under R. 6 (3) of the Rules. This petition was argued by Shri Phul Singh in person, and the only argument that was advanced by him was that Section 5 (2) of the Act, requiring that there must be a nomination signed by two electors as proposer and seconder, is ultra vires the Constitution. According to him, he possessed all the qualifications for being a candidate laid down in Article 58. He had proved that he was an elector registered in a Parliamentary constituency by producing a certified copy of the entry relating to him in the electoral roll. He had also produced a certificate that he had resigned from government service and was not holding an office of profit, under the Government. He relied on the electoral roll to show that he was a citizen of India. He also produced a copy of his High School certificate showing that he was not less than 35 years of age. In these circumstances, according to him, his nomination paper could not be rejected on the ground that he had not been nominated by two electors as proposer and seconder. On the face of it, his argument that Section 5 (2) of the Act contravenes Article 58 or any other Article of the Constitution has no force at all.Section 5 (2) of the Act was enacted by Parliament in exercise of its power of regulating all matters relating to or connected with the election of a President or Vice-President and, in exercise of this power, Parliament was fully competent to lay down how a candidate, otherwise qualified, must become a candidate by seeking nomination by two electors and to prescribe the detailed subsequent procedure leading up to the polling and declaration of result. The requirement laid down by Parliament that every person must be nominated by two electors as proposer and seconder is reasonable requirement relating to regulation of election to the office of a President and cannot be held to be a curtailment of the right of a qualified candidate to stand as a candidate under Article 58. In these circumstances, the ground, on which the election petition has been filed, fails and, consequently, the petition is liable to be dismissed.

Issue No. 8 in Election Petitions Nos. 4 and 5 of 1969.

250. This issue was raised by the petitioners on the plea that Part III of the Act, which includes Section 18, is ultra vires Article 71 (1) of the Constitution, so that the petitioners are entitled to challenge an election of the President on grounds other than those mentioned in Section 18 of the Act. This contention fails in view of the finding on Issue No. 5 that Part III of the Act is not ultra vires Article 71 of the Constitution and that Parliament did not act contrary to the provisions of the Constitution in limiting the grounds of challenge of an election in an election petition by enumerating them in Section 18 of the Act. Consequently, the first part of Issue No. 8 has to be answered in the negative, holding that the petitioners are not entitled to dispute the election of the respondent on grounds other than those mentioned in Section 18 of the Act. The other parts of the issue, as a consequence, do not arise at all. The issue is answered against the petitioners.

Issues Nos. 9, 9-A and 10 in Election Petition No. 5/1969.

251. These issues are based on the allegations made in paragraph 15 of the petition in which there is, first, a general charge that the offence of bribery was freely committed at the election by the supporters of the respondent (returned candidate), with his connivance, with the object of inducing the electors to exercise their vote in favour of the respondent. With this object, gratification was offered and given to them. This general allegation is followed by a specific instance in which it is mentioned that a licence for setting up an industry in Polyester Fibre was to be granted by the Government of India. The Punjab State Government also applied for the licence. The licence, was, however refused to the public sector and was, instead, granted to a private limited company in which Shri Sita Ram Jaipuria, a Member of the Rajya Sabha, who was also an influential elector, had financial interest. It was alleged that this licence was granted to the Company as a gratification with the object of inducing Shri Sita Ram Jaipuria and the electors under his influence to exercise their vote in favour of the respondent and against Shri Sanjiva Reddy, in whose favour they were intending to vote earlier. According to the petitioners, this licence was granted during the election period. A further allegation was made that one Shri Kanwar Lal Gupta, a Member of Parliament, wrote a letter to the Election Commission stating that money was being offered to some members to vote for the respondent; and, from this, it was also clear that the offence of bribery was rampant during the elections.

252. So far as this second allegation relating to the letter of Shri Kanwar Lal Gupta, Member of Parliament, is concerned, no evidence was allowed to be tendered on it on behalf of the petitioners, because the allegation was in a very general form stating that the offence of bribery was rampant; and this pleading was also based solely on a letter written to the Election Commission.No specific instances were cited and no particulars were given. On the face of it, a general allegation that bribery was rampant in the election could not be made the subject-matter of a specific charge of commission of offence of bribery.

253. Evidence was allowed to be led on the first charge which, if the facts had been proved to be true, could possibly constitute the offence of bribery.If, in fact, the licence had been granted to a private limited company with the specific purpose of obtaining the vote of Shri Sita Ram Jaipuria, an elector and a Member of Parliament, for the respondent, that could constitute bribery.However, from the evidence led on this issue on behalf of the petitioners themselves, it appears that no case at all of commission of the offence of bribery during the election period could possibly be established; and that appears to be the reason why, when arguments were heard by the Court after the evidence had been recorded, counsel for the petitioners did not even try to argue that this offence of bribery had been established. The then Chief Minister of Punjab, Sardar Gurnam Singh, and the Director of Industries, Punjab, were examined as witnesses on behalf of the petitioners to prove that an application for grant of the licence for Polyester Fiber Factory was sent to the Central Government on behalf of the Industrial Development Corporation which was a public limited concern owned by the Punjab Government. The petitioners also examined the Director of Industries, U. P., the Registrar of Companies, U. P., and the Secretary of the Swadeshi Cotton Mills Ltd., Kanpur, to prove that an application was also presented for the licence for the same factory on behalf of Swadeshi Cotton Mills in which Shri Sita Ram Jaipuria holds shares in his own name and a large number of shares are also held by his wife, his children, and other close relatives. The Secretary to the Government of India, Ministry of Industrial Development, and the Under-Secretary to the Government of India, Ministry of Petroleum and Chemicals, were also produced as witnesses and they proved the fact that the licence for the Polyester Fibre Factory was granted in favour of Swadeshi Cotton Mills in preference to the public sector company, the Industrial Development Corporation owned by the Punjab Government.

The evidence of the latter two witnesses also, however, proved the circumstances in which the licence was granted to the Swadeshi Cotton Mills, Kanpur, disregarding the claim of the Industrial Development Corporation of Punjab. According to the evidence of these two witnesses, the procedure obtaining is that all applications for such licences are first processed in the relevant Ministries and are examined and completed if any further material is to be obtained. The Administrative Ministry, which in this case was the Ministry of Petroleum and Chemicals, prepares a note showing the various factors relating to each application which require to be taken into consideration. Thereafter, these applications come up for consideration before a sub-committee of the Licensing Committee of the Government of India. The Licensing Committee is a large body which includes amongst its members Secretaries of various Ministries as well as representatives of State Governments. This Committee appoints sub-committees for licences concerned with specific Ministries of the Government. In the case of the Polyester Fibere Factory, the meeting of the sub-committee took place on the 7th July, 1969 when the decision was taken to grant the licence to Swadeshi Cotton Mills, Kanpur. In accordance with the rules, this decision of the sub-committee was submitted to the Minister in charge of the Ministry of Industrial Development who gave his approval in the second week of July. It was subsequently that a letter of intent for granting the licence to Swadeshi Cotton Mills was issued on behalf of the Government of India on 24th July, 1969. According to the procedure prevailing, any parties who were claimants for licence and whose claims were rejected, had a right to make a representation after the issue of the letter of intent and their representation had to be considered by the full Licensing Committee. The meeting of the full Licensing Committee was actually held on the 13th November, 1969. At this meeting, representatives of the U. P. Government as well as the Punjab Government were present and they argued the cases on behalf of the two parties from their States, viz., the Swadeshi Cotton Mills Ltd., Kanpur, and the Industrial Development Corporation, Punjab. It appears that it was on the basis of the fact that the letter of intent was issued on 24th July, 1969 that this charge of bribery was put forward by alleging that the licence was granted to Swadeshi Cotton Mills during the election period.As has been indicated earlier, the decision about the grant of licence to Swadeshi Cotton Mills was taken by the sub-committee on the 7th July, 1969, and even the Minister in charge of the Ministry of Industrial Development gave his approval in the second week of July.The candidature of Shri Sanjiva Reddy for the office of the President was decided upon by the Parliamentary Board of the Congress on 12th July, 1969, and the respondent announced his candidature for the first time on 13th July, 1969, which was the last but one day before the close of the second week of July. On the face of it, the grant of the licence to Swadeshi Cotton Mills could not possibly have any relation to the candidature of either Shri Sanjiva Reddy or the respondent for the office of the President, and it is impossible to accept that the licence was granted to Swadeshi Cotton Mills for the purpose of inducing Shri Sita Ram Jaipuria to vote and exercise his influence in favour of the respondent. The grant of the licence was in due course in accordance with the procedure prevailing in the Ministry of the Government of India and had no relation at all with the candidature of the respondent for the office of the President which, in fact, was announced after that decision had already been arrived at.Consequently, the conclusion follows that no offence of bribery was committed in the matter of grant of licence for the Polyester Fibere Factory to Swadeshi Cotton Mills; and this ground for setting aside the election of the respondent, therefore, fails and is rejected.

Issue No. 4 (a), (b) and (c) in Election Petitions Nos. 4 and 5 of 1969.

254. This issue relates to the challenge to the validity of the election of the respondent on the ground of commission of a number of offences of offences of undue influence under Section 18 (1) (a) and (b) (i) of the Act which lays down that, if the Supreme Court is of opinion-

(a) that the offence of bribery or undue influence at th election has been committed by the returned candidate or by any person with the connivance of the returned candidate; or

(b) that the result of the election has been materially affected-

(i) by reason that the offence of briery or undue influence at the election has been committed by any person who is neither the returned candidate nor a person acting with his connivance, the Suppreme Court shall declare the election of the returned candidate to be void.

Section 18 (2) gives the definition of the words "bribery and undue influence" by laying down that, for the purposes of this section, the offences of bribery and undue influence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code. In the Indian Penal Code, Section 171C which defines "undue influence" is as follows:-

"171C. (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."

To appreciate the significance of this definition, reference may also be made to Clause (b) of Section 171A which defines "electoral right" as meaning the right of a person to stand, or not to stand as , or to withdraw from being, a candidate or to vote or refrain from voting at an election. The definition of "undue influence" also uses the word "injury" in S. 171C (2) (a), and this word has also been given a special meaning under the Indian Penal Code, having been defined in Section 44 as denoting "any harm whatever illegally caused to any person, in body, mind, reputation or property".

255. In order to decide whether the various allegations made in the two election petitions do constitute the commission of the offence of undue influence it is necessary to understand properly what acts constitute undue influence as defined in Section 171C of the Indian Penal Code. Sub-section (1) of Section 171C, in general terms, makes any act an undue influence if it interferes or attempts to interfere with the free exercise of any electoral right, and if it is committed voluntarily. The question has arisen what acts can be held to interfere with the free exercise of an electoral right. We are here concerned with the electoral right of a voter which, according to the definition in Section 171A (b), is the right to vote or refrain from voting. Undue influence can be held to be committed if the person charged with the offence interferes or attempts to interfere with the free exercise of this right of voting or refraining from voting. When an elector exercises the right of vote, it can be envisaged that he goes through the mental process of first taking a decision that he will vote in favour of a particular candidate and, thereafter, having made up his mind, he has to go and exercise that electoral right by casting the vote in favour of the candidate chosen by him. The language used in Section 171C indicates that the offence of undue influence comes in at the second stage when the offender interferes or attempts to interfere with the free exercise of that choice of voting in accordance with the decision already taken by the voter. It, therefore, follows that, if any acts are done which merely influence the voter in making his choice between one candidate or another, they will not amount to interference with the free exercise of the electoral right. It fact all canvassing that is carried on and which is considered legitimate is intended to influence the choice of a voter at the first stage and that is quite permissible. Once the choice has been made by a voter, there should be no interference with the free exercise by him of that choice by actually casting the vote, or, in the alternative, there may be a case where a voter may decide that he will not vote for any candidate at all, but some acts are done which compel him to cast his vote. It is in such cases that the offence of undue influence will be held to have been committed. The language used in the definition of "undue influence" implies that an offence of undue influence will be held to have been committed if the elector, having made up his mind to cast a vote for a particular candidate, does not do so because of the act of the offender; and this can only be if he is under a threat or fear of some adverse consequence. Whenever any threat of adverse consequence is given, if will tend to divert the elector from freely exercising his electoral right by voting for the candidate chosen by him for the purpose. In a case where the voter is threatened with an injury as defined in the Indian Penal Code it has to be deemed under S. 171C (2) (a) that it interferes with the free exercise of the electoral right of the voter; and the same applies it the elector is induced or attempt is made to induce him 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. In the first case, under Clause (a), it is a temporal harm illegally caused to the person, in body, mind, reputation or property, while in the second case, under Clause (b), the interference is because of the fear of becoming an object of Divine displeasure or of spiritual censure. There can, however, be cases where the threat may not be of an injury as defined in Section 44, I. P. C. where the harm caused must be illegal. Cases can arise where there may be no illegality in the threatened consequence to the voter and, yet, it may interfere with the free exercise of his right to vote. An instance that can be cited is where a father may threaten to disinherit his son in respect of property solely owned by the father unless his son voted for a particular candidate or refrained from voting for some other candidate. The consequence of non-compliance with the wishes of the father would be the loss of inheritance to the son which is not an injury as defined in Section 44, I. P. C. Such an attempt by the father would clearly amount to exercise of undue influence by him on his son. But, in cases where the only act done is for the purpose of convincing the voter that a particular candidate is not the proper candidate to whom the vote should be given, that act cannot be held to be one which interferes with the free exercise of the electoral right.

256. It has, however, been argued that there may be a case such virulent propaganda may be carried on against a candidate as may cloud the mind and judgment of the voters and almost compel them to come to a decision that they should not vote for that particular candidate. It was urged that, in such a case, it should be held that undue influence was exercised on the voters. In considering this proposition, various aspects have to be kept in view. The first is that, if it is held that propaganda adverse to a candidate can amount to undue influence, it will be almost impossible to draw a line and differentiate between legitimate propaganda which will amount to undue influence and that which will not. Then comes the question of the reverse type of propaganda where a particular candidate is so highly praised that voters are influenced to the extent of considering him an excellent person well above all other candidates; and the question will be whether such an influence on the mind of a voter can be held to be undue influence. More important than all these aspects is the scheme of the law and the language used in it which, in my opinion, very clearly show that mere propaganda against a candidate cannot be held to be exercise of undue influence. The word "free" is used in Section 171C, I. P. C., as qualifying "exercise" and not as qualifying the word "vote". If undue influence had been defined as interference with the exercise of free vote, possibly the definition could have been construed as indicating that influence brought on the mind of a voter so as to change the manner of his voting by affecting his choice and judgment in selecting the candidate for whom he is going to cast his vote, would be comprised within undue influence. The word "free" having been used as qualifying the word "exercise" gives the indication that the freedom envisaged is to cast the vote in accordance with the choice already arrived at and, it such freedom of casting the vote in that manner is interfered with, the offence of undue influence will be held to have been committed. In Words and Phrases, Permanent Edition, Vol. 17A by West Publishing Company, the meaning of the word "free" in various contexts acepted in America has been given, and the relevant meaning which can assist is in the following words:-

"Within the constitutional provision, elections are "free" when the voters are subjected to no intimidation or improper influence, and whenever every voter is allowed to vote as his own judgment and conscience dictate."

This meaning clearly indicates that the question of freedom actually arises at the stage when a voter has already exercised his judgment and conscience, has decided which candidate he will vote for, and is then allowed to cast his vote freely without any interference in the form of intimidation or improper influence.

257. A very important aspect in considering this argument is that whatever meaning is given to the expression "undue influence" in the Act will also apply when interpreting the provisions of the Indian Penal Code, because the Act imports the definition of "undue influence" from Section 171C of the Code. In the Indian Penal Code, a new Chapter IXA was introduced by the Indian Elections Offences and Inquiries Act 39 of 1920. The Statement of Objects and Reasons attached to the Bill which culminated in that Act explained this provision by stating that:

"undue influence at an election is defined as the voluntary interference or attempted interference with the right of any person to stand, or not to stand, or withdraw from being, a candidate, or to vote or refrain from voting. This covers all threats of injury to person or property and all illegal methods of persuasion and any interference with the liberty of the candidates or the electors."

The language used in Section 171C was, thus, intended to cover only cases where the interference comes at the stage when the elector must have liberty to cast his vote freely, having already made up his mind how that vote is going to be cast. It is interference at this stage that was envisaged as amounting to undue influence.

258. The subject of influence at the stage of making a choice was dealt with in Chapter IXA of the Indian Penal Code under a separate and distinct provision which is contained in Section 171-G and is as follows:-

"Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, shall be punished with fine."

258A. The section clearly recognises that, at elections, there is bound to be propaganda in which candidates or their supporters may be issuing statements so as to influence the voters against their rival candidates, and it limits the prohibition by law to only those statements of fact which are false, or believed to be false, or believed not to be true, in relation to the personal character or conduct of any candidate.Propaganda can be not only by attacking the personal character or conduct of a candidate, but even his political or public character and activities. On the face of it, Section171G envisages that propaganda of the latter type will not be treated as an offence. Only when the propaganda is in the form of false statements of fact relating to the personal character or conduct of the candidate that the law will punish the person indulging in it by making him liable to payment of fine. These false statements about the personal character or conduct of the candidate may, of course, be scurrilous and foul; but, even then, the offence committed would fall under Sec. 171G, I. P. C., which makes the offence punishable with fine only. On the other hand, an offence of undue influence as defined in Section 171C, I. P. C., has been made punishable under Section 171F, I. P. C., with imprisonment of either description for a term which may extend to one year or with fine, or with both. If it is held that false propaganda against personal character or conduct of a candidate can amount to undue influence, the person indulging in that propaganda would become liable to punishment under S. 171F, I. P. C., which has been considered a more serious offence by being made pubishable with imprisonment in addition to, or, in the alternative, with fine. This interpretation would thus make S. 171G, I. P. C., totally ineffective and otiose. If the false statements as to personal character or conduct are held to be punishable under Section 171F as constituting offence of undue influence, there would be no point in prosecuting the same person for the less serious offence under Sec. 171G. In fact, Section 171G would be fully covered by Section171F and, consequently, the interpretation sought to be urged in these petitions has to be rejected.

259. It is true, that, in the Act, there is no provision indicating that publication by a candidate, or by any other person with is connivance, of a statement of fact which is false in relation to the personal character or conduct of another candidate will be deemed to be a corrupt practice on the commission of which an election can be declared void. Such omission in the Act cannot, however, be a good reason for enlarging the meaning of the offence of undue influence so as to hold that an election of a President or Vice-President must also be set aside on such a ground. It may be noticed in this connection that, in the Representation of the People Act, 1951 there is a specific provision contained in Sec. 123 (4) laying down that a corrupt practice is constituted by the publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election. In the Representation of the People Act, 1951 also, undue influence is defined in almost the same language as that contained in Section 171C, I. P. C. In that Act, therefore, an election can be declared void not only on the ground of commission of the corrupt practice of undue influence, but also on the ground of publication of false propaganda as to the personal character or conduct of a candidate. Parliament, however, chose not to include any such provision in the Act which was passed when the Representation of the People Act, 1951 had already been enacted and enforced. The Court is not concerned with the reasons which weighed with the Parliament in making such an omission in the Act when a similar provision had been kept in the earlier enactment in respect of elections to the Central and State Legislatures. The omission may be deliberate or accidental, but, in either case, it is not for the courts to attempt to fill up this gap by enlarging the meaning to be given to the expression "undue influence" which is the corrupt practice included in the Act as a ground for setting aside the election. It is clear from the scheme of Chapter IXA of the Indian Penal Code that false propaganda as to the personal character and conduct of a candidate was created as a separate offence and the definition given in Section 171C of "undue influence" was not intended to lay down that such propaganda will amount to interference with the free exercise of electoral right so as to constitute undue influence.

260. The only case of this Court dealing with the question of undue influence under the Act is reported in (1968) 2 SCR 133 [LQ/SC/1967/317] = (AIR 1968 SC 904 [LQ/SC/1967/317] ), where the Court had to consider the distinction between canvassing and exercise of undue influence and held:-

"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 Sec. 171-C shows, the mere exercise of a legal right without intent to interfere with an electoral right would not be undue influence."

The Court, after reviewing the relevant case law under the Representation of the People Act, then proceeded to hold:-

"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 standing for election. Such canvassing does not amount to undue influence but is proper use of the Ministers right to ask the public to support candidates belonging to the Ministers 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 Ministers 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."

In that case, the Court thus envisaged that the question of undue influence will arise if there is some sort of compulsion on the electorate to vote in the manner indicated by the person alleged to have committed that corrupt practice, and a question of such compulsion can obviously arise only when a voter, having made his choice as to the person for whom he will cast his vote, is under some pressure to vote for another candidate owing to the undue influence exercised on him. The nature of interference, which would constitute undue influence, was further clarified when dealing with the letters issued by the Chief Whip of the Congress Party requesting members not to cast their second preference vote, by stating:-

"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."

The Court, thus, envisaged that undue influence is exercised when an elector is not free to do what he desires, while influencing his desire will not be exercise of undue influence.

261. It has already been indicated above that the scheme of Chapter IXA of the Indian Penal Code and Section 123 of the Representation of the People Act is quite similar inasmuch as, in both these enactments, undue influence is defined in almost identical language and the publication of false statements as to the personal character of a candidate has been separately made either a criminal offence or a corrupt practice in practically the same language. Consequently, some assistance can be derived from the interpretation that has been given to the provisions contained in Section 123, sub-sections (2) and (4) of the Representation of the People Act, 1951. Dealing with this aspect in the case of Ram Dial v. Sant Lal, 1959 Supp (2) SCR 748 = (AIR 1959 SC 855 [LQ/SC/1959/72] ) this Court first pointed out that the law in England relating to undue influence at elections is not the same as the law in India and, consequently, proceeded to interpret the law here without taking into account the principles laid down in England. In that case, the question arose whether, what a religious leader had done by issuing a hukam or farman, amounted to undue influence or not. The Court held:-

"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 candidates 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 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, acording to the finding 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 Ext. 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."

In that case, thus, the Court envisaged that the hukam or farman issued by the religious leader was a mandate, the disobedience of which would carry divine displeasure or spiritual censure, and it was for this reason that it was held that corrupt practice of undue influence had been committed.

262. In the case of Inder Lal v. Lal Singh, 1962 Supp (3) SCR 114 = (AIR 1962 SC 1156 [LQ/SC/1962/64] ), this Court explained the scope and purpose of sub-section (4) of Section 123 of the Representation of the People Act by pointing out that, for the protection of the constituency against acts which would be fatal to the freedom of election, the statute had provided for the inclusion of the circulation of false statements concerning the private character of a candidate amongst corrupt practices, and dissemination of false statements about the personal character of a candidate had been constituted into a corrupt practice. This corrupt practice was envisaged as separate and distinct from the corrupt practice of undue influence mentioned in Section 123 (2) of that Act.

263. In the case of Lalroukung v. Hoakholal Tangjom, Civil Appeal No. 1315 of 1968, D/- 9-1-1969 (SC) this Court dealt with a case where there had been an assault close to the polling station after certain pamphlets had been issued, wherein threats were freely canvassed and exhortations made that those, who opposed the candidates supported by the two organisations (which issued the pamphlets), would not be forgotten nor spared. The Court then proceeded to hold :-

"In the light of propaganda of this nature carried on before the polling days, it is impossible to view the assault as an isolated incident nor can it be legitimately argued that the conclusion of the Judicial Commissioner that it was a culmination of those threats was either an unreasonable or an unwarranted conclusion. There can be no doubt that such rowdyism at a polling station was bound to deter voters from coming to the polling station to exercise freely their franchise. We have no doubt that the assault by the appellants polling agent attracted Section 123 (2), proviso (a), and that also rendered the election void."

This was again a case where the exercise of their electoral right by the voters was interfered by physical act of assault and threat on voters who intended to vote for the rival candidate.

264. The last case of this Court which may be referred is the decision in Manubhai Nandlal Amersey v. Popatlal Manilal Joshi, AIR 1969 SC 734 [LQ/SC/1969/1] in which the effect of a speech came up for consideration and it was held :-

"The actual effect of the speech is not material. Corrupt practice is committed if the speech is calculated to interfere with the free exercise of electoral right and to leave no choice to the electors in the matter. In considering the speeches, the status of the speaker and the character of the audience are relevant considerations."

This case also, thus, envisaged that there must be some element of compulsion on the voter to vote in a particular manner before the act said to be a corrupt practice can be held to amount to undue influence.

265. Coming to the decisions of the High Courts, the first case that may be cited is the decision of the Orissa High Court in (1958) 19 ELR 203 (Orissa). Barman, J., explained undue influence in the following words :-

"A voter must be able to freely exercise his electoral right. He must be a free agent. All influences are not necessarily undue or unlawful. Legitimate exercise of influence by a political party or association or even an individual should not be confused with undue influence. Persuasion may be quite legitimate and may be fairly pressed on the voters. On the other hand, pressure of whatever character, whether acting on the fears, threat, etc., if so exercised as to overpower the volition without convincing the judgment is a species of restraint which interferes with the free exercise of electoral right. In such an atmosphere, the free play of the electors judgment, discretion or wishes is overborne and this will constitute undue influence, though no force is either used or threatened. It is not necessary to establish that actual violence had been used or even threatened. Methods of inducement which are so powerful as to leave no free will to the voter in the exercise of his choice may amount to undue influence. Imaginary terror may have been created sufficient to deprive him of free agency."

He, thus, distinguished between influence which is exercised for convincing the judgment of a voter, and influence the result of which is that the free play of the electors judgment, discretion or wishes is overborne and the elector is left no free will to exercise his choice. In this decision, thus, the distinction, as indicated above is clearly brought out. In that case, however, a picture with a caption had been published as a part of a cover of booklet, and it was held that its publication amounted to exercise of undue influence. The reason is indicated when the learned Judge, dealing with this poster, held :-

"The picture with the caption, as it stood, was intended to be made catchy with an ulterior motive and was deliberately published in that asked form in order to create a feeling of terror, fear and hatred and was such a compelling appeal to the mind of the voters as to amount to interference with the free exercise of voters electoral right."

The picture in question showed a dead boy with a caption in Oriya which, translated in English, was to the effect: "Do not vote for the Congress who killed Sahid Sunil". That picture, thus, did not contain any false statement or representation as to the personal character of a candidate; but Barman, J., held:-

"The picture of the dead boy with the caption was a direct charge against the Congress that it killed the deceased boy. This was a misrepresentation of fact. It was as a result of firing by the police that the boy unfortunately got involved. We do not know whether the Congress Party took a stern view of the firing, whether the Congress Party itself condemned the firing, and whether ultimately those responsible for the firing were reprimanded and punished for the unfortunate incident. The catchy caption that the Congress killed the boy was false representation made by the respondent No. 1 with intent to strike terror into the mind of the voters and thereby to interfere with the free exercise of electoral right of such terror-stricken voters. The picture with the caption was a distortion of a situation for political ends done with the intention as aforesaid. It was an artful device to catch the imagination of the voters. It terrorised the voters and was likely to create in their mind a feeling of terror, fear, hatred or strong prejudice against the Congress. In the caption under the dead boys picture was a veiled threat to the voters that if they voted for the Congress who were capable of killing, then such Congress, so retained in power, would again, - as it actually did in the past, resort to such killing of men in which the voters themselves or their children might also be killed in the same way as it was openly demonstrated by the picture of the dead boy with the caption. It at least did create or was likely to create or had the tendency to create terror and an unknown fear in the mind of the voters. The picture of the dead boy with the caption frightened the voters or was likely to frighten them and it was intended to overawe voters which interfered or was likely to interfere or had the tendency to interfere with the free exercise of electoral right of the voters."

It will, thus, be seen that the main reason for holding that the publication of the picture amounted to exercise of undue influence was that it created terror and fear in the minds of voters of personal harm to themselves or their children in case they voted for the Congress candidate. The publication of the picture was not held to be undue influence or interference with the electoral right because it contained false propaganda against the candidate or the Congress Party, but because of the element of compulsion which was envisaged as arising in the minds of the voters not to vote for the Congress because of the fear of consequences which might be visited on themselves or their children in case they voted for the Congress. Barman, J., in this connection, also referred to the decisions of Election Tribunals in Sardul Singh v. Hukam Singh, (1953) 6 ELR 316 (Election Tribunal Patiala) and (1953) 7 ELR 457 (Election Tribunal, Kotah) and agreed with the principles laid down in those cases. I shall indicate later the ratio of those two decisions. The other two Judges, constituting the majority, differed from Barman, J., and held that the publication of the picture did not amount to undue influence, because, in their opinion, no inference could be drawn that the publication of this picture was intended to create a fear in the minds of the voters. Rao, J., dealt with the submission of Mr. Rath, the counsel, that a look at the photo will make the voter think that, if he votes for the Congress Party during whose office the killing took place, he would be similarly killed and therefore it created a fear in his mind and thus interferes with the free exercise of the electoral right. He rejected it by saying that, in his opinion, this was a far-fetched argument. He further held :-

"The picture simply represents Sunil De after being shot at by the police firing with the caption underneath "Do not vote for the Congress who killed Sahid Sunil". It does not say that, if the voters give their votes for the Congress, all the voters or some of them would be shot as Sunil De. Further, the shooting of Sunil De is known to everybody and that is on account of police firing in connection with the States Reorganisation Committee Reports disturbances, the voters therefore cannot be influenced to think by publication of this poster that if they voted for the Congress they would be shot at like that. It is also significant that there is nothing mentioned about this poster in the election campaign in the booklet on whose cover the photo is printed. The respondent No. 1, therefore, could not have intended to cause fear in the minds of the voters by publication of exhibit 3 in order to interfere with the free exercise of their votes."

Das, J., dealt with this aspect as follows:-

"Nothing has been stated in the body of exhibit 3 relating to this picture. The picture simply represented a dead person after being shot by the police firing with the caption : "Do not vote for the Congress who killed Saheed (Martyr) Sunil". Nowhere it was stated if the voters gave their votes to the Congress they would be shot at as Sunil. The further fact is that Sunil De was shot at by the police firing in connection with the disturbance arising out of the recommendations of the States Reorganisation Commission of which the electors had known before.

Thus, the voters cannot be said to have been influenced to think that if they voted for the Congress they would be shot at like Sunil. Hence, in my opinion, the respondent No. 1 could not have intended to cause any fear in the minds of the voters by the above publication to constitute interference with the free exercise of the electoral right of the voters."

The decisions by these two Judges are, of course, of no help; but, as indicated earlier, even the decision of Barman, J., is in line with the view taken above and does not indicate that mere false propaganda as to the personal character of a candidate or even relating to the party sponsoring the candidate can amount to the corrupt practice of undue influence.

266. The next case which may be cited is another decision of the Orissa High Court in Abdul Rahiman Khan v. Radha Krushna Biswas Roy, AIR 1959 Orissa 188. In that case, the successful candidate had published a poem and the question arose whether the publication of that poem amounted to exercise of undue influence. The Court first, in general terms, dealt with the scope of undue influence by saying :-

"Section 123 of the Act is rather wide in its term and contemplates four distinct forms of interference with the free exercise of any electoral right, viz., direct interference, indirect interference, direct attempt at interference and indirect attempt at interference. There is nothing in the definition that such interference or attempt at interference should be by any method of compulsion. Evidently, the offence includes such interference or attempts to interfere by any method, and it definitely includes the method of inducement wherein there may not be any compulsion at all. The inducement again must be of such powerful type as would leave no free will to the voter in the exercise of his electoral right."

This general explanation does not appear to be inconsistent with the view taken above, because it was held that, even if there be no compulsion at all, the inducement must be of such powerful type as would leave no free will to the voter in the exercise of his electoral right. The freedom of will envisaged, obviously, is to vote in accordance with his choice. On the facts in that case, it was found that, in the poem, there were threats against Raja of Kalahandi in whom the defeated candidate was interested. After referring to the Raja of Kalahandi, the objectionable portion read as follows :-

"Without any consideration for your own and others, you acted as a devil. Would anybody now be able to save you if you are beaten mercilessly Having done all the above mischiefs, now you are appealing to the electors for their vote as a shameless person. If there were a grain of shame left in you, would not have progressed at all. You are a thief and a Badmas and you should not remain in our land. You who belong to the Ganatantra party are only fit for the gallows."

These words, clearly, contained a threat to the life and were, therefore, rightly held to amount to exercise of undue influence. Similarly, another portion was to the following effect:-

"The leader of your Party was making money by selling widows is well known to the raiyats. Since there is not a bit of sense left in you, you are now seeking votes of these raiyats of Koraput. They will no longer be dissuaded by your words."

It was further stated that:

"the raiyats of this Constituency are bound to take revenge on you. How dare you ask for their votes

266-A. Again, the Court, in holding that these publications amounted to exercise of undue influence, was fully justified, because there were clear threats against the life of the candidate.

267. The only other case of a High Court that requires to be noticed is the decision of the Pubjab High Court in Amir Chand Tota Ram, Delhi v. Smt. Sucheta Kripalani, AIR 1961 Punj 383. The Court expressed its view by holding:-

"The legal phrase "undue influence" denotes something legally wrong or violative of a legal duty. In order to establish undue influence, it must be proved that the influence was such as to deprive the person affected of the free exercise of his will. It must amount to imposing a restraint on the will of another whereby he is prevented from doing what he wishes to do or is forced to do which he does not wish to

An advice, argument persuasion or solicitation cannot constitute undue influence. Honest intercession, even importunity, falls short of controlling a persons free exercise of his will. A persuasion, which leaves a person free to adopt his own course, is not undue influence. Otherwise a suggestion or an entreaty from somebody, held in esteem, could be treated as undue influence. In the absence of proof that a person has been, in consequence of the alleged influence, deprived of free agency no question of there being an undue influence arises.

It is not objectionable to exercise an influence by acts of kindness or appeals to the free reason and understanding. So long as the free agency of the other person is not prevented or impaired by obtaining a domination over the mind of another, it cannot be deemed as an exercise of an undue influence. The essence of "undue influence" is that a person is constrained to do against his will, but for the influence he would have refused to do if left to exercise his own judgment. It has to be shown that a persons volition had thus been controlled by another whereby he could not pursue his own inclination, being too weak to resist the importunity and in view of the pressure exercised on his mind he could not act intelligently and voluntarily and had become subject to the will of the other who had thus obtained domination over his mind."

267A. This exposition of the scope of "undue influence" is also in line with the view taken above. It envisages that the corrupt practice of undue influence is committed when a person is constrained to do against his will and is unable to act in accordance with his judgment. Such a position can only arise if the influence is brought on the person concerned after he has already formed his judgment and decided how he will exercise his electoral right. Propaganda for the purpose of influencing the judgment, even if undesirable, cannot be held to be undue influence.

268. Coming to the cases of Election Tribunals, the earliest case that needs consideration is the decision in (1953) 6 ELR 316 (Election Tribunal, Patiala) (supra). In that case, the Tribunal held:

"It is not necessary that there should be any actual threat or physical compulsion held out, but the method of inducement as may be adopted should convey to the mind of the person addressed that non-compliance with the wishes of the person offering the inducement may result in physical or spiritual harm to himself or to any other person in whom he is interested. Some fear of harm resulting from non-compliance with the request thus, seems to constitute an essential element in "undue influence".

269. On behalf of the petitioners, emphasis was laid on the decision of the Election Tribunal in (1953) 7 ElR 457 (Elec. Tri., Kotah) (supra).

In that case, it was held:-

"It may be observed that an attempt to interfere by the method of compulsion is not necessary and that even the method of inducement may be sufficient, provided it be of such a powerful type as would leave not free will to the voter in the exercise of his choice. In other words, actual physical compulsion is not necessary, but positive mental compulsion may be enough to give rise to an undue influence."

269A. After expressing this view, the Tribunal proceeded to hold that the publication of a particular poster amounted to exercise of undue influence. Referring to it, the Tribunal held:-

"The poster was, therefore, clearly designed not only to catch voters for respondent No. 1, but, also, to overawe voters, the majority of whom were men of no better intelligence than ordinary illiterate villagers and to create a feeling of positive prejudice, if not of terror as well, in their minds against the petitioner."

269B. Reliance was placed primarily on the last part of this quotation where the Tribunal held that the creation of a feeling of positive prejudice in the minds of the voters can amount to undue influence. But this part of the sentence has to be read in conjunction with the earlier part where a clear inference was drawn that the poster was clearly designed to overawe the voters. This was the reason why the Tribunal held that the publication of the poster amounted to undue influence, though, when defining undue influence in general, the Tribunal had clearly stated that the inducement must be of such a powerful type as would leave no free will to the voter in the exercise of his choice. In stating this principle, the Tribunal was clearly referring to the stage when, having made his choice, the voter wants to exercise it in accordance with his free will and that free will is interfered with. The Tribunals decision is also, thus, in line with the view taken above.

270. The next decision of a Tribunal on which reliance has been placed is in Radha Krishna v. Tara Chand, (1956) 12 ELR 378 (Ele. Tri. Lucknow); but that decision appears to be of no help as, in that case, relying on an English decision, the Tribunal held that, before a threat can be said to amount to undue influence, the question must be put, was it a serious and deliberate threat uttered with the intention of carrying it into effect, and proceeded to apply that test to the case before it. The Tribunal, therefore, dealt with a situation where there was clearly a threat to the voters, but even the threat in question contained in the slogan was held not to constitute corrupt practice, as there was nothing to show that the purpose of the slogan was to directly or indirectly interfere with any persons free exercise of his electoral right.

271. In Amir Chand v. Sucheta Kripalani, (1958) 18 ELR 209 (Ele. Tri. Delhi) the Tribunal, after quoting the definition of "undue influence" contained in Section 123 (2) of the Representation of the People Act, 1951, held:-

"The definition, no doubt, is in general terms but it has an element of compulsion and it is an abuse of influence that will constitute undue influence".

These remarks also do not go contrary to the view taken above.

272. The last case that requires notice is the decision of a Tribunal in Kataria Takandas Hemraj v. Pinto Frederick Michael, (1958) 18 ELR 403 (Ele. Tri. Surat) in which it was said:-

"A candidate, or as matter of fact, any person has every right to persuade people to vote in his favour at the election and in that respect he is further entitled to be even critical of the policy and the acts of the rival party or its candidate and that way it may as well be legitimate for them to influence the voters, provided they did not transgress the legitimate bounds of criticism. It is only undue influence which can be taken exception of, and, even though that term is wide enough to cover any interference with the exercise of the electoral right, one can justifiably call any act as an interference only when it has in it an element of compulsion so as to give way to free thinking in the exercise of the electoral rights of the voters."

This case also, therefore, envisaged some element of compulsion as a result of which a voter is unable to exercise his electoral right in accordance with his judgment and choice. None of the decisions rendered so far by the Courts or Tribunals in India, thus, go contrary to the view expressed above and, if at all, a majority of them are in line with it. It is in the light of this interpretation of what undue influence means that this Court has to proceed further to see which of the allegations made in the present petitions can amount to charges of undue influence and whether they have been established so as to vitiate the election.

273. The principal charge of undue influence, on which a mass of evidence has been led by the petitioners, relates to the publication of a pamphlet which contained scurrilous and vulgar allegations as to the personal character of Shri Sanjiva Reddy. It is not necessary for me to set out the details of the contents of that pamphlet. It is suffcient to mention that apart from allegations against Shri Sanjiva Reddy, there were no other allegations in it which could amount to a threat of any adverse consequence to any voter in case he cast his vote in favour of Shri Reddy. Even in the evidence, no witness stated that as a result of reading this pamphlet, he apprehended any adverse consequence either to himself or to anyone in whom he may be interested. No doubt, some witnesses stated that, on reading the pamphlet, they felt that, if Shri Sanjiva Reddy is elected as President, the Rashtrapati Bhavan may become a brothel; but that also does not amount to a threat of a nature which would constitute undue influence as explained above. Consequently, the publication of this pamphlet cannot constitute undue influence, so that it is totally unnecessary to go into the question whether it was printed, published and distributed at all; if so, by whom, and, further, whether such printing, publication or distribution was or was not with the connivance of the respondent. As I have held earlier, in the Act there is no provision made for setting aside election on the ground of publication of false statements as to the personal conduct or character of a candidate even if it affects his prospects in the election, so that no evidence need have been taken with regard to the printing, publication or distribution of this pamphlet or with regard to the question as to whether there was any connivance by the respondent in its printing, publication or distribution. The challenge to the election of the respondent based on this petition fails on this preliminary ground. However, I may add that, having had the benefit of reading the judgment proposed to be delivered by my brother Sikri, J., on these issues, I agree with his assessment of the evidence tendered by the parties and the findings recorded by him. These findings of fact are to the effect that, though the pamphlet was distributed by post and in the Central Hall of Parliament, it has not been proved that this distribution was with the connivance of the respondent or that the distribution materially affected the result of the election. Consequently, even on the assumption that the publication of this pamphlet could constitute undue influence, the election of the respondent is not liable to be set aside.

274. Apart from this ground based on the pamphlet, a number of other instances of exercise of undue influence were also cited and relied upon in these two election petitions. These grounds have also been dealt with by my brother Sikri, J., and some by my brother Mitter, J. I agree with their reasons and findings for holding that none of these charges of undue influence has been established, so that the challenge to election of the respondent on the ground of exercise of undue influence fails altogether.

275. I also agree with the order directing parties to bear their own costs and the reasons for that order give by my brother Sikri, J., in his judgment.

Issue No. 7 in Election Petition No. 1 of 1969,Issue No. 9 in Election Petition No. 4 of 1969, and Issue No. 11 in Election Petition No. 5 of 1969.

276. As a result of the findings on other issues, the petitioners in none of these petitions are entitled to any relief, as no ground has been made out for declaring the election of the respondent as void.

Mitter, J.

277. I have had the benefit of reading the judgments of my colleagues. The facts leading up to the filing of these petitions and the issues settled therein have been set out in the judgment of my learned colleague Bhargava, J. I am in agreement with him in his conclusion on issues other than issue No. 4 in Election Petitions 4 and 5 of 1969. I regret to have to differ from my other colleagues on this issue. As Petition No. 5 is more comprehensive than Petition No. 4 I prefer to refer to the allegations made in Petition No. 5 alone. Leaving out of account the technical grounds on which the election has been challenged, the petitioners have asked for a declaration that the election be declared void on the following grounds:

(1) That the offence of undue influence at the election had been committed by the returned candidate (hereinafter referred to as the respondent) and by his supporters with the connivance of the respondent as mentioned in paragraph 8 (a) and various sub-paragraphs of 13 (b) and (c) of the Petition.

(b) The result of the election was materially affected by reason of the offence of undue influence at the election having been committed by persons mentioned in paragraph 13 of the petition.

278. Undue influence is alleged to have been committed in diverse ways on various persons details whereof are given hereinafter.

279. Paragraph 13 of Petition No. 5 purports to give a summary of the events which are alleged to have formed the background in which the offences were said to have been committed. Put briefly they are as follows:

(1) After the demise of the late Dr. Zakir Hussain, the Prime Minister of India who was also an influential leader in the Congress Party took the view that the respondent who was then the Vice-President of India should be adopted as the Congress candidate for the office which had fallen vacant. This was not acceptable to all her colleagues in the Congress Parliamentary Board (hereinafter referred to as the Board) - a body which had in the past selected the partys candidate for the office of the President. The controversy which thus arose could not be settled because of want of unanimity of opinion and the matter was left to be decided at the Bangalore Session of the All India Congress Committee (hereinafter referred to as the Committee) to be held in July 1969.

(2) No consensus being attained at the meeting of the Board held in Bangalore on July 12, 1969 the matter was decided by voting. The Prime Minister and Sri Fakhrudin Ali Ahmed voted for Sri Jagjiwan Ram while Sri Morarji Desai, Sri Y. B. Chavan, Sri S. K. Patil and Sri Kamaraj voted in favour of Sri N. Sanjeeva Reddy.

(3) The decision of the Board greatly upset the Prime Minister and she then and there threatened the members of the Board that it would lead to serious consequences and that she should not have been over-ruled it that manner.

(4) The official announcement of the selection of Sri Sanjeeva Reddy as Congress candidate for the office of the President of India was made on 13th July, 1969 and on the same day the respondent who was then acting as the President of India called a Press conference at Rashtrapati Bhavan whereat he announced his candidature for the office of the President. He issued a statement condemning the selection of Sri Sanjeeva Reddy as based on partisan considerations and emphasised that a candidate for the highest office in the land should possess character, integrity, patriotism, experience and a good record of service and sacrifice. According to the petitioner there was an insinuation that the above requisite qualifications were lacking in Sri Sanjeeva Reddy.

(5) Being upset by the decision of the Board, the Prime Minister without any consultation with her colleagues in the Cabinet advised the Acting President of India that she would withdraw the Finance portfolio from Sri Morarji Desai. Her advice being accepted Sri Morarji Desai was relieved of his portfolio. She followed it up with the promulgation of the Bank Nationalisation Ordinance, a day before Parliament was to commence its session. This Ordinance was signed by the respondent acting as President.

(6) On the 22nd July, 1969 the Prime Minister proposed Sri Sanjeeva Reddy as a candidate for the office of the President of India which was duly seconded by Sri Swaran Singh, a Cabinet Minister.

(7) The Prime Minister however expressed difficulty in issuing a written appeal in support of the candidature of Sri Sanjeeva Reddy.

(8) At a meeting of the Board help on August 6, 1969 there was a joint address by the Prime Minister and the Congress President, Sri S. Nijalingappa, in support of Sri Sanjeeva Reddys candidature. At this meeting the Prime Minister stated that she stood by the decision of the party while on his part Sri Nijalingappa said that he had been in contact with leaders of various opposition parties, namely, the P. S. P., the S. S. P., the Jan Sangh, B. K. D. and others and that the response in favour of Sri Sanjeeva Reddy had been encouraging.

(9) On August 9, an anonymous pamphlet in cyclostyled form and a printed pamphlet both without the name of the publisher or the printer were published by free distribution among the members of the electoral college for the Presidential election. In this the leaders of the party like Shri S. K. Patil, Shri Atulya Ghosh and others were castigated as selfseekers who had tried to become virtual dictators and Sri Sanjeeva Reddy who had been selected by these people was described as a corrupt and immoral person. The pamphlet charged Sri Sanjeeva Reddy not only with lack of probity but as having been guilty of gross misdemeanour towards members of the other sex on a number of occasions culminating in the statement that if he were to become the President he would "turn Rashtrapati Bhavan into a harem, a centre of vice and immorality."

(10) Not satisfied with what the Prime Minister had said at the Congress Parliamentary meeting on August 6, Sri Nijalingappa requested her specifically on August 9 to issue an appeal to the members of the party to vote and work for the success of the Congress candidate. The Prime Minister avoided doing this and merely said that people should abide by the decision of the Board.

(11) This was followed by certain correspondence by and between Sri Fakhruddin Ali Ahmed and Sri Jagjiwan Ram jointly on the one hand and Sri Nijalingappa on the other, as also by and between Sri Nijalingappa and the Prime Minister from August 11 to August 15. The correspondence showed an open cleavage between the members of the party and it became clear that the Prime Minister and her colleagues in the Cabinet and their supporters made the issue of the success at the election by defeating the group which opposed her at the meeting of the Board on July, 12, as one of prestige and political survival of the Prime Minister.

280. Against the above background the offence of undue influence was said to have been committed by the returned candidate and some persons named and unnamed and described as the workers and supporters of the respondent with his connivance by voluntarily interfering and attempting to interfere with the free exercise of the electoral rights of the candidates and the electors in general and some of them named in particular.

(a) According to paragraph 13 (b) (ii) of the petition Sri S. Nijalingappa, Sri S. K. Patil, Sri K. Kamaraj, Sri Morarji Desai and Sri Y. B. Chavan, electors at the election were threatened by the Prime Minister on the 12th July at Bangalore with serious consequences with the object of unduly influencing them so as to make them change their decision to nominate Sri Sanjeeva Reddy as their candidate. The threat is alleged to have been repeated subsequently on a number of occasions. It was also said to be a direct attempt to dissuade Sri Sanjeeva Reddy from standing as a candidate.

(b) In paragraph 13 (b) (iii) of the petition it was stated that with the object of interfering with the free exercise of the electoral rights of Sri Sanjeeva Reddy, Sri Nijalingappa, Sri Kamaraj and others, electors at the election, supporters of the respondent viz., Sri Jagjivan Ram, Sri Yunus Saleem, Sri Sashi Bhushan, Sri Krishna Kant, Sri Chandrasekhar, Sri Jagat Narain Sri Mohan Dharia and Sri S. M. Banerjee in particular and other supporters and workers of the respondent in general with the consent and connivance of the respondent published by free distribution a pamphlet, annexure A-38 to the petition, in Hindi and English, in cyclostyled form as well as in printed form in which serious allegations, as already noted, were made amounting to the commission of undue influence upon the persons named within the meaning of Section 171-C, I. P. C.

(c) According to paragraph 13 (b) (iv) of the petition this pamphlet was distributed from 9th to 16th August among all electors of the electoral college for the Presidential election. It was distributed in the Central hall of Parliament by the abovenamed person i. e., Sri Jagjiwan Ram and others. A large number of electors were asked to read the contents of the pamphlet, and were also asked to say whether they would vote for such a debauch and corrupt man. An instance of this is given in paragraph 13 (b) (iv) of the petition: Sri Yunus Saleem approaching Abdul Gani Dar, one of the petitioners and talking to him as above in the presence of other members of Parliament.

(d) The petitioner, Sri Abdul Ghani Dar took strong exception to what was going on and wrote a letter to the respondent endorsing a copy thereof to the Prime Minister and Sri Humayun Kabir requesting the respondent to condemn those who had published the pamphlet and make a public statement dissociating himself from and denouncing the publishers of the pamphlet.

(e) The respondent himself during his tour of the country addressed pressmen and members of the public at various places and repeatedly stated that a man of character and integrity should have been selected.

(f) according to paragraph 13 (c) (i) the supporters of the respondent, namely, the Prime Minister and some of her Cabinet colleagues like Sri Jagjiwan Ram, Sri Fakhruddin Ali Ahmed, Sri Yunus Saleem, Dr. Karan Singh, Sri Dinesh Singh, Sri Swaran Singh, Sri I. K. Gujral, Sri S. S. Sinha, Sri K. K. Shah and Sri Triguna Sen misused their position for furthering the prospects of the returned candidate by contacting a large number of electors on the telephone and openly telling them that if the electors did not vote for the respondent they would lose all the patronage which they would otherwise be given. Electors were called by some of the abovernamed Ministers at their Official residences and offices in Delhi and undue influence brought to bear upon them by ordering them to vote for the returned candidate.

(g) According to paragraph 13 (c) (iii) of the petition Sri Fakhruddin Ali Ahmed and Sri Yunus Saleem threatened the Muslim electors that Sri Sanjeeva Reddy was in fact a candidate of the Jan Sangh Party and if he was elected the fate of the Muslim community in India would be in danger. This undue influence was exercised over all the Muslim electors in the country and specially those in Parliament. An instance of this is given as having taken place between Sri Yunus Saleem and Sri Abdul Ghani Dar.

(h) The workers and supporters of the respondent became desperate and demanded freedom of vote at the election so that the members of the Congress party may not feel themselves bound by their party affiliation to vote for Sri Sanjeeva Reddy. It was stated that such a scare was created that the President of the U. P. Congress Committee, Sri Kamlapati Tripathi and the Chief Minister Sri C. B. Gupta who had on August 6, 1969 addressed a meeting for solidly backing Sri Sanjeeva Reddy changed their stand and on the 13th August, 1969 Sri Kamlapati Tripathi also pleaded for freedom of vote.

(i) According to paragraph, 13 (c) (v) a scare was raised and undue influence exercised on the minds of the members of the Legislative Assembly of Bengal that if successful Sri Sanjeeva Reddy would enforce Presidents Rule in Bengal wiping off the United Front Government and the legislative assembly. According to paragraph 13 (c) (ii) a similar scare was raised with regard to enforcement of Presidents Rule in Andhra Pradesh. According to paragraph 13 (c) (x) the returned candidate, the Prime Minister, Sri Jagjivan Ram Sri Kakhruddin Ali Ahmed and others entered into a conspiracy calculated to maintain the said Ministers in their office by the allegation that Sri Nijalingappa had entered into an arrangement with the leaders of the Jan Sangh and Swatantra Party to oust the Congress Government from the Centre and to establish a Coalition Government.

280A. There are other allegations of undue influence in the said paragraph but as they were not pressed no further notice need be taken of them.

281. In paragraph 14 of the petition it was stated that the result of the election had been materially affected by reason of the commission of the offence of undue influence at the election by the persons mentioned in paragraph 13 of the petition.

282. In paragraph 16 of the petition it was stated that in case the Court came to the conclusion that the offences mentioned above, though committed were not connived at by the respondent, still the election ought to be declared void as the result of it had been materially affected by the above practices.

283. In the counter affidavit filed by the respondent the above charges were all denied and the correctness of the statements disputed. The respondent stated expressly that for want of knowledge he could not traverse the allegations in the various sub-paragraphs of paragraph 13 of the petition except those which were made against him or imputed to him and alleged to have been said or done at his instance or with his connivance. He stated categorically in paragraph 25 of the counter affidavit that he had been carrying on his campaign single handed and that in between July 30, and 13th August he was out of Delhi most of the time touring different parts of the country. He disputed the correctness of the charges made in the various sub-paragraphs of paragraph 13 and denied that he had been contacted by the Prime Minister at Delhi from Bangalore as alleged or alleged or that she had suggested that as soon as an official announcement regarding the selection of Sri Sanjeeva Reddy was made he should announce his own candidature for the office of the President. With regard to his press conference he said that he had only outlined the necessary qualifications for the office of the President and that his statement could by no means be read as an attack on the personal conduct or character of Sri Sanjeeva Reddy. He said further that he had approved of the taking over of the portfolio of Finance from Sri Morarji Desai on the 16th July, on the recommendation of the Prime Minister but the signing of the Bank Nationalisation Ordinance had nothing to do with the Presidential Election. He stated in clear terms that he had no knowledge of any of the statements relating to printing, publishing and distribution of the unsigned pamphlet, whether printed or otherwise and he completely dissociated himself therefrom. He denied the insinuation that he had anything to do with the Prime Ministers alleged call for a free vote to get support for himself. He characterised the allegations regarding the publication and distribution of the pamphlet mentioned in the petition by anybody as his supporters or workers with his consent and connivance, as reckless, wild and false. He denied having received any letter from Sri Abdul Ghani Dar as mentioned in the petition or any copy of the pamphlet. He denied ever having hinted in any of his public addresses anything derogatory to the personal conduct or character of Sri Sanjeeva Reddy. With regard to paragraph 13 (c) (i) of the petition he stated that he was not aware of any of the persons having acted in the manner alleged therein. With regard to paragraph 13 (c) (ii) and (iii) as also 13 (c) (x) he disclaimed all knowledge.

284. On 21st January, 1970, the Court directed the petitioners to furnish several particulars of the petition mostly relating to paragraph 13 (b) (iii), 13 (b) (iv), 13 (c) (i) and 13 (c) (iii). In compliance with the same the petitioners gave inter alia the following particulars.

285. With regard to paragraph 13 (b) (iv) they stated "that the persons who had distributed the pamphlet between the 9th and 16th August, 1969, were already mentioned in paragraph 13 (b) (iii) and some other persons who had done so were being mentioned in particulars furnished to paragraph 13 (b) (iii), namely, Shri Maulana Ishaq Sambali, Sri Akbar Ali, M. P., Sri Bhupesh Gupta M. P. and Sri Randhir Singh M. P. With regard to the place and date on which the persons mentioned in paragraph 13 (b) (iii) were alleged to have distributed the pamphlet it was said that on 9th August, 1969, Sri Sashi Bhushan, M. P. and Sri Krishan Kant, M. P. had together distributed copies of the said pamphlet to various members of Parliament at the latters resident in New Delhi. It was also said that the pamphlet had been distributed by leaving the same at the residence of nine other electors at their residence on 9th August, late in the evening. Little attempt was made to prove these statements.

286. The names of 18 persons were given as having received the said pamphlet at their residence by post in various places in India. They were all members of the Legislative Assemblies of Uttar Pradesh as also of Madhya Pradesh, Bihar and Chandigarh. Of these some but not all were examined in Court.

287. Further, with regard to distribution of the pamphlet it was said that the persons already mentioned in paragraph 13 (b) (iii) as also those mentioned in reply to the application for particulars given above distributed the same individually and in groups of two or more on all days between 11th and 15th August to the general body of electors frequenting the Central hall of Parliament. The names of 29 members of Parliament were given as the recipients of the pamphlets in the above manner. Further groups of M. Ps. were mentioned as having distributed the said pamphlets to some or other of the petitioners on the 11th August, 1969, in the Central hall of Parliament. With regard to the telephone calls by Ministers exercising undue influence over the members of the electoral college referred to in paragraph 13 (c) (i) about 30 M. Ps. were named as having been so contacted by 11 named Ministers including the Prime Minister, Sri Fakhruddin Ali Ahmed, Sri Jagjiwan Ram, Sri Yunus Saleem and Sri I. K. Gujral. With the exception of three of them, namely, Sri Fakhruddin Ali Ahmed, Sri Yunus Saleem and Sri I. K. Gujral, no attempt was made to substantiate the above. I do not think it necessary to dilate more on the correctness of the particulars and the attempt to establish the same except to say that little effort was made to establish the allegations which were verified either as true to the knowledge of the deponent, Sri Abdul Ghani Dar or as being based on information received by him from the persons named, some of whom were called as witnesses but did not support the version of Sri Abdul Ghani Dar as given in the particulars.

288. For the sake of convenience issue No. 4 is reproduced below:

Issue 4 in Election Petitions Nos. 4 and 5.

(a) Whether all or any of the allegations made in paragraphs 8 (e) and 13 (a) to (m) of the petitions constitute in law an offence of undue influence under Section 18 (1) (a) of the Presidential and Vice-Presidential Elections Act of 1952

(b) Whether the said allegations made in paragraphs 8 (e) and 13 (a) to (m) are true and proved

(c) In the event of these allegations being proved constituting undue influence, whether

(i) the returned candidate has committed the offence of undue influence

(ii) Whether undue influence was committed by his workers and if so, with his connivance and

(iii) Whether undue influence was committed by others without his connivance and if so, whether that has materially affected the result of the election

289. Before going into the evidence adduced one must note the provisions of the law relating to the election of the President of India and in particular the grounds on which such an election can be challenged and then briefly consider the history of the law of undue influence generally and examine the statutory provisions of the law of undue influence applicable to elections and the exposition thereof in India.

290. Article 71 (1) of our Constitution provides that all doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be enquired into and decided by the Supreme Court whose decision shall be final. Sub-clause (3) of that ariticle lays down that:

"Subject to the provisions of this Constitution, Parliament may by law regulate the matter relating to or connected with the election of a President or Vice-President."

By Act 31 of 1952, the Presidential and Vice-Presidential Elections Act (hereinafter referred to as the Act) Parliament made provisions for the conduct of Presidential and Vice-Presidential elections. Disputes regarding elections are dealt with in Part III of the Act containing Sections 13 to 20, Section 16 of the Act lays down the reliefs which may be claimed by a petitioner and Section 18 specifies the grounds for declaring the election of a returned candidate to be void. The relevant part thereof reads as follows:

"18 (1) If the Supreme Court is of opinion-

(a) that the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the connivance of the returned candidate; or

(b) that the result of the election has been materially affected -

(i) by reason that the offence of bribery or undue influence at the election has been committed by any person who is neither the returned candidate nor a person acting with his connivance;

* * * *

(c) * * * *

The Supreme Court shall declare the election of the returned candidate to be void.

(2) For the purposes of this section, the offences of bribery and undue influence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code (Act 45 of 1860)."

291. Section 21 contained in part IV provides for the making of rules to give effect to the Act. The provisions in the Constitution and the Presidential and Vice-Presidential Elections Act of 1952 and the Rules framed thereunder form a complete code relating to such election and all doubts and disputes regarding the validity of such elections which can be adjudicated upon by the Supreme Court must arise within the limits specified thereby.

292. Chapter IX-A of the Indian Penal Code which deals with offences relating to elections was introduced by the Indian Elections Offences and Inquiries Act, 39 of 1920, Section 2. Section 171-A in that part defines candidates and electoral right. Bribery is defined in Section 171-B. Undue influence at elections is covered by Section 171-C which runs as follows:-

"(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."

Under Section 171-F whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description which may extend to one year or with fine or with both. Under Section 171-G:

"Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine."

293. It will be noted that the words used in sub-sec. (1) of Sec. 171-C are very wide and sub-sec. (2) though illustrative of sub-section (1) does not purport to comprehend all the facets of undue influence under sub-section (1). The statement of objects and reasons of the Act of 1920 makes the intention of the legislature clear. It reads:

"The second sub-clause is merely explanatory of the general definitions in the first sub-clause and does not restrict the generality of the words used there. We have considered the criticisms of this clause based on the generality of the words employed but we are satisfied that any attempt at specific enumeration would be open to serious danger of loopholes in what we regard as a most salutary provision."

On the facts of this case the vital question before us is, whether the mere publication of a false statement highly derogatory of the personal conduct or character of a candidate or the dissemination of a scurrilous pamphlet depicting a candidate as one of lecherous character will fall under sub-section (1) of Section 171-C or whether in order to prove the commission of the offence the election petitioner must go farther and establish that there was an attempt on the part of some persons to interfere with the free choice of a candidate on the part of the voters by making use of the pamphlet so as to deflect their will and restrict their choice to persons other than the one defamed.

294. Undue influence is an old and well known English legal concept. Before the expression came to be used in litigation over elections it had acquired a definite significance to English lawyers although its exposition in common law was somewhat different from that which the equity lawyers gave it. The concept was developed along a particular line by Judges in England trying election disputes and our Indian law has by and large followed the same pattern. According to Anson on English law of Contract (22nd Edition) Chapter VII:

"A contract which has been obtained by means of pressure or intimidation is voidable at common law or inequity on the ground of duress. At common law the definition of duress is a narrow one and only the more extreme forms of coercion will suffice. In equity, however, owing to the development of the doctrine of constructive fraud, a contract may be rescinded in cases where common law provides no remedy. ..... At common law duress consists in actual or threatened violence or imprisonment; the subject of it must be the contracting party himself, or his wife, parent, child, or other near relative; and it must be inflicted or threatened to be inflicted by the other party to the contract, or at least it must be known to him when he entered into the contract."(see p. 243).

The learned author goes on to say at pages 244 and 245:

"Equity, on the other hand, will treat contracts as voidable when they have been induced by forms of pressure of coercion which do not amount to duress at common law. .........

The term undue influence has sometimes been used by the Courts to describe the equitable doctrine of coercion which has just been referred to, but it also includes, and it would perhaps be convenient to confine it, forms of pressure much less direct or substantial than those already discussed. It may arise where the parties stand to one another in a relation of confidence which puts one of them in a position to exercise over the other an influence which may be perfectly natural and proper in itself, but is capable of being unfairly used. * * *

If it can be shown that one party exercised such domination over the mind and will of the other that his independence of decision was substantially undermined, the party whose will was overborne will be entitled to relief on the ground of undue influence.

There is no need for any special relationship to exist between the parties, although, of course, it may do so. The mere fact that denomination was exercised is sufficient; no abuse of confidence need be proved."

295. According to Cheshire and Fifoot on the Law of Contract (7th Edition) p. 264:

"The Courts have never attempted to define undue influence with precision, but it has been described as some unfair and improper conduct, some coercion from outside, some overreaching, some form of cheating, and generally, though not always, some personal advantage obtained by the guilty party."

296. So far as the English Law of Elections on which principally our election laws are based is concerned, reference may be made to some of the well-known text books on the subject. According to Rogers Parliamentary Elections and Petitions, 20th Edition Chapter XI p. 325;

"In England corruptly influence a voter, whether by the more direct and grosser form of treating or the more indirect and subtler form of wagers was always an offence as a species of bribery; but unduly influencing a voter was not, before the 17 and 18 Vict. c. 102, an offence in the strict sense of the word, although its prevalence is mentioned in many resolutions of the House of Commons, and many statutes have been passed to prohibit the evil in particular instances; and although a vote unduly influenced is void at common law and will be struck of on a scrutiny."

The learned author goes on to add:

"As early as 3 Edw. 1, c. 5, which is declaratory of the common law, in affirming the vital principles of freedom of election, said, "Because elections ought to be free, the King commandeth, upon forfeiture, that no man by force of arms,nor by malice or menacing,shall disturb any to make free election."

Rogers notes that in the case of Lichfield (1869) 1 OM and H. 25, Willes, J., defined undue influence as

"using any violence or threatening any damage, or resorting to any fraudulent contrivance to restrain the liberty of a voter, so as either to compel or frighten him into voting or abstaining from voting otherwise than he freely wills."

In the same case the learned Judge added (at p. 28):

"The law cannot strike at the existence of influence. The law can no more take away from a man, who has property, or who can give employment, the insensible but powerful influence he has over those who he can benefit by the proper use of his wealth, than the law could take away his honesty, his good feeling, his courage, his good looks, or any other qualities which give a man influence over his fellows. It is the abuse of influence with which alone the law can deal. Influence cannot be said to be abused because it exists and operates. It is only abused in cases of this kind, where an inducement is held out by a promise ....... to induce voters to vote or not to vote at an election."

This case was decided upon 17 and 18 Vict. c. 102, Section 5.

297. According to Rogers the following are the principal kinds of improper influence:

1. The use of open force or violence, or the threat therof.

2. The infliction of any temporal injury, damage, harm or loss or by the threat thereof.

3. The infliction of any spiritual injury, damage, harm or loss, or by the threat thereof.

4. The impeding etc. the due exercise of the franchise etc. by abduction, duress, or any fraudulent device or contrivance.

298. Section 101 of the Representation of the People Act, 1949 appears to be the latest codification of the English law on the subject of undue influence. Under sub-section (1) a person shall be guilty of corrupt practice if he is guilty of undue influence. Sub-section (2) of the section is in two parts. Under clause (b) a person shall be guilty of undue influence if, by abduction, duress or any fraudulent device or contrivance, he impedes or prevents the free exercise of the franchise of an elector or proxy for an elector, or thereby compels, induces or prevails upon an elector or proxy for an elector either to vote or to refrain from voting.

299. Under Section 91(1) of the Representation of the People Act, 1949:

"Any person who, or any director of any body or association corporate which, before or during an election, shall, for the purpose of affecting the return of any candidate at the election, make or publish any false statement of fact in relation to the personal character or conduct of the candidate shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true:"

300. It will thus be noticed that in England the law of undue influence as regards elections is somewhat akin to that branch of the law as expounded by the courts of equity and both have a common facet, namely, the inducement of a person to act otherwise than under his free will by resort to any fraudulent device or contrivance.

301. Coming now to our Indian law, Section 16 of the Contract Act which came on the statute book in 1872 laid down by sub-section (1) that:

"A contract is said to be induced by "undue influence" where the relations subsisting between the parties are, such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other."

In substance our law of contract with regard to undue influence stresses upon the domination of the will by another to obtain an unfair advantage by the exercise thereof. So far as our election law is concerned the earliest attempt seems to have been the codification in 1919 under Chapter IX-A of the Indian Penal Code. This was followed by the Government of India (Provincial Elections) Corrupt Practices and Election Petitions Order, 1936 which will be shortly described as the Corrupt Practices Order. This law was passed after the Government of India Act of 1935. Corrupt practice in relation to an election by the members of a Provincial Legislature to fill seats in Provincial Legislative Council, meant one of the practices specified in Parts I and II of the First Schedule to the Order, and in relation to any other election, meant one of the practices specified in Parts, I, II and III of that Schedule. Part I of the First Schedule defined undue influence in Clause 2 in the following terms:-

"Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or his agent, or of any other person with the connivance of the candidate or his agent, with the free exercise of any electoral right:

Provided that-

(a) without prejudice to the generality of the provisions of this paragraph, any such person as is referred to therein who-

(i) threatens any candidate or elector, or any person in whom a candidate or elector is interested, with any injury of any kind; 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 electrol right of that candidate or elector within the meaning of this paragraph:

(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 paragraph."

302. It will be noticed that there is a good deal of similarity between this provisions and that in Section 171-C of the Indian Penal Code. There is greater similarity between undue influence as defined in Section 171-C and the definition of that expression in Section 123 of the Representation of the People Act, 1951 -another Parliamentary Act. Under the Act of 1951 undue influence is defined as follows in Section 123 (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 person with the consent of the 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 an elector or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication 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."

This Act contains a further provisions in clause (4) of Section 123 laying down that "the publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal conduct or character of any candidate in relation to the candidature or withdrawal, of any candidate being a statement reasonably calculated to prejudice the election of that candidate at an election"

will be deemed to be a corrupt practice for the purpose of that Act.

303. It will be noted that under sub-section (4) publication of a false statement relating to the personal conduct or character of a candidate only becomes a corrupt practice when it is done by a rival or his agent or any other person with his consent. However opprobrious such publication may be it is not an electoral offence under the Act of 1951 and would not be a ground for setting aside an election although it might become culpable under Section 499 of the Indian Penal Code and such punishable with simple imprisonment for a term which may extend to two years or with fine or with both. Clearly such publication per se would not amount to any direct or indirect interference or attempt to interfere with the free exercise of an electoral right so as to attract Section 123 (2) of the Act. Even in England it would be an illegal practice within the meaning of Section 91 (1) of the Representation of the People Act. By itself it would not make the publisher of the statement guilty of undue influence. While enacting the statute of 1952 the legislature had before it the electoral offences codified in Chapter IX-A of the Indian Penal Code. It recognised the necessity of a law prescribing for the annulment of an election only if bribery or undue influence was committed thereat. Such offence if committed by a candidate or by any person with his connivance was enough for declaring the election void. But if committed by any person who was not the returned candidate nor one acting with his connivance, it was not to affect the election unless the result of it had been materially affected by such malpractices. So far as this branch of the law is concerned the only difference between the Act of 1951 and the Act of 1952 lies in the fact that under the latter Act corrupt practices of bribery or undue influence by one who was not a party to the election or his agent are also brought in. But the nature and character of undue influence under both the Acts remains the same. I see no reason for taking a view that what would not be undue influence under the Act of 1951 can become one under the Act of 1952.

304. If publication of any defamatory matter relating to a candidate was to be treated as a direct or indirect interference or attempt to interfere with the free exercise of any electoral right under the wide words of Section 171- C (1) there would have been on occasion for the legislature to provide for it separately under Section 123 (4) of the Act of 1951.In my view the same position would obtain under the Act of 1952 and before any publication of a defamatory matter relating to a candidate can be treated as commission of the offence of undue influence there must be some overt act in addition to the mere publication - some attempt or persuasion of a voter to restrain the free choice of a candidate before the law of undue influence is excited.

305.The above proposition may be illustrated as follows: If anonymous posters containing defamatory matter about a candidates personal conduct or character were to be displayed in prominent places were to in the constituency so as to attract the notice of electors, it would come within notice of electors, it would come within the mischief of Section 171-G of the Indian Penal Code but would fall short of exercise of undue influence under Sec. 171-C.An attempt to denigrate a person in such a way could not be said to be directed to thwarting the free choice of electors inasmuch as the poster by itself would give no indication as to the source of information on which the imputations were made or of their authenticity.But if an unsigned pamphlet containing matter defamatory of the personal conduct or character of a candidate be pressed personally upon an elector by another with an attempt to make the receiver believe that there was some basis for the charges levelled against the candidate the person receiving the pamphlet would be likely to give credence to the imputations made therein and would thus be subject to a restraint on his franchise. As a mere attempt to interfere with the free exercise of an electoral right is sufficient for the purpose of Section 171-C (1) of the Indian Penal Codeit is not necessary to prove positively that there was actual domination of or overbearing of the will of the elector to lead to the inference that undue influence was exercised: it would be sufficient to show that there was an attempt to pervert the unfettered choice of a voter by resort to illegitimate persuasion inter alia by pressing upon him a document containing such a false statement of fact relating to the conduct or character of a candidate as would make any right-thinking man shrink from selecting him and shun him in the process of selection of a candidate. In such a case it would not be difficult to hold that there was in fact malice behind the publication and the adoption of a fraudulent device calculated to defeat or deflect the will of the elector.In this view of the matter the publication of a false statement of fact relating to the conduct or character of a person coupled with an attempt to pursuance electors by such publication would attract the operation of Section 171-C (1) of the Indian Penal Code. It would also fall within the definition of undue influence in Section 123 (2) of the R. P. Act of 1951 and the definition given in Clause 2 of the Corrupt Practice Order, 1936.

306. I may now proceed to note some of the reports of Election Commissions under the Corrupt Practices Order 1936 before examining more recent decisions. In Amritsar City (Mohammadan) Constituency - Sh. Mohammad Sadiq v. Dr. Saifuddin Kitchlew, (1864-1935) 2 Doabias E. C. 117 before the Second Election Petitions Commission Bench the scope of undue influence under the First Schedule to the Corrupt Practices Order, 1936 came to be considered. It was the case of the petitioner that one Feroze-ud-in Ahmed by administering oaths to his audience which included numerous voters, restricted their choice to the returned candidate Dr. Kitchlew, under pain of spiritual penalties and thereby interfered with the free exercise of their right to vote. Counsel for the respondent argued that the element of compulsion was an essential ingredient of the corrupt practice of undue influence and contended that it was not even alleged that Feroze-ud-Din Ahmed had compelled his audience to take the alleged oaths. The Commissioners found that:

"such oaths, were taken and that Feroze-ud-Din Ahmed also reminded his audiences of the penalties provided for breach of such oaths by their religion. It is evident that the element of compulsion was present in the minds of those voters who had taken oaths to vote for Dr. Kitchlew at the time when they marked their ballot-papers; they had given an undertaking, supported by the sanction of loss of faith, which inevitably leads to divine displeasure and spiritual censure; that they would vote for Dr. Kitchelw and for no other person."

The Commissioners however could not find in the definition of undue influence any basis for the proposition that unless Feroze-ud-Din Ahmed had compelled voters to take these oaths, the offence of undue influence was not complete observing:

"That definition, as is obvious, gives a very wide scope of the meaning of "undue influence" ...... Evidently the offences includes such interference or attempt to interfere by any method, and one, possible method is the method of inducement, which is proved to have been practiced in this case. In fact the word induces occurs in the second proviso to the definition of "undue influence" reproduced above. Further, we have seen that the inducement was of a very powerful type, supported as it was by references to the demolition of the Shahidganj Mosque and the deaths of Muslims which resulted from the firing during the ensuing disturbances in regard to which the feeling among the rank and file of the Muslim community is undoubtedly very deep."

In Amritsar City (Mohammadan) Constituency Case No. 2, (1935-50) 2 Doabias E. C. 150, D/- 28-9-1938 the meaning of undue influence under the Corrupt Practices Order, 1936 again fell to be considered. There a question arose as to whether certain news items and posters in which the unsuccessful person was wrongly and falsely described as standing as a candidate on a Muslim League ticket would fall within the mischief of the Order. In their report the Commissioners stated (at p. 157):

"There is no proper evidence of actual interference before us, and as regards the attempt, we have to see if there was the deliberate intent to mislead voters and thus make them exercise their electoral right under the wrong impression that the respondent had been set up as a candidate by the Muslim League."

The case for the petitioner there was that one Maulana Zaffar Ali Khan by making an appeal to the voters restricted their choice to Mohammad Sadiq under pain of spiritual penalties and even otherwise and thereby exercised undue influence in the free exercise of their right to vote. In the opinion of the Commissioners an inducement could not amount to undue influence unless it was of such a powerful type as would leave no free will to the voter in the exercise of his choice. In Lyallapur and Jhang General Constituency Case No. 2 (1864-1935). 2 Doabias E. C. 243 at p. 256 one of the questions canvassed was whether fraud was a corrupt practice within the meaning of Government of India (Provincial Legislative Assemblies) Order (1936, paragraph 4-B. According to the Commissioners fraud may in some cases come within the ambit of the corrupt practice of undue influence. Referring to the definition of undue influence in the said order the Commissioners observed:

"It is obvious that the definition of undue influence is very widely worded and covers all kinds of fraudulent acts or omissions which, in any way directly or indirectly interfere with the exercise of any electoral right. The definition on the English Act specifically makes a fraudulent device or contrivance a type of undue influence. As devices based on fraud which interfere with the exercise of electoral right, are not mentioned by name in the definition given in Schedule I, it has been intentionally framed in very general terms so as to cover all kinds of such devices."

(1953) 7 Ele LR 457 (Ele. Tri. Kotah) was a case in which there were two candidates, one a jagirdar and the other a Congressman. The Congress committee published a poster containing the picture published a poster containing the picture of a tenant tied up to a tree and a well dressed jagirdar asking another who had a waving whip in his hand, to flog the tenant and the tenants wife was shown lying prostrate on the ground. It was held that the publication of the poster amounted to the exercise of undue influence on the voters who were mostly illiterate villagers and the case fell under Section 123 (2) of the Representation of the People Act.

307. In (1956) 12 Ele LR 378 at p.415 (Ele.Tri. Lucknow) one of the questions before the Election Tribunal was whether the shouting of a slogan in various villages and bazars that people who vote in a particular way would be given a shoebeating amounted to exercise of undue influence. Relying on the observations of Norfolk (Northern case) (1869) 1 OM and H 236 at p. 242 that before a threat can be considered to amount to undue influence, a question must be put, was it a serious and deliberate threat uttered with the intention of carrying it into effect Applying that test, the Election Commissioners held that they had no difficulty in coming to the conclusion that the shouting of the slogan could not amount to undue influence inasmuch as it was shouted for several months before the election was held and not a single instance was brought on record in which the threat contained in the slogan was carried out. On the facts of the case, it was held that none of the parties could be said to have uttered slogans for the purpose of directly or indirectly interfering with any persons free exercise of his electoral right. Reference was also made to the fact that there was no evidence that any complaint even had been made about the shouting of the slogans to the agents of the petitioners.

308. In (1958) 18 Ele LR 209 (Ele. Tri. Delhi) one of the question which engaged the attention of the election Tribunal was whether a false statement in a daily newspaper to the effect that the respondent Smt. Sucheta Kriplani was going to be taken as a Rehabilitation Minister in the forthcoming Union Cabinet after the election thereby giving currency to the rumour amounted to undue influence as contemplated under Section 123 (2) of the Representation of the People Act. The view taken by the Tribunal was that (p.252):

"The so-called device namely, that some one from Lucknow sent the news as a rumour or opinion of the member of the Congress High Command, does not fall within the ambit of the definition"

in Section 123 (2). It was said that though the definition was no doubt in general terms it has an element of compulsion and it was an abuse of influence that would constitute undue influence.

309. In (1958) 18 Ele LR 403 (Ele. Tri. Surat) an appeal was made to Maharashtrian not to vote for the Congress candidate as the Congress Government had resorted to firing and killing Maharashtrian leaders for demanding a separate Maharashtra State and photographs of martyrs who had been killed were attached to the appeal and it was even stated that the ballot box of the Congress Party was filled with the blood of Maharashtrian martyrs. Negativing the plea of undue influence sought to be raised in the above appeal, the Tribunal stated that although the expression undue influence was wide enough to cover any interference with the exercise of the electoral right, there is in it an element of compulsion so as to give way to free thinking in the exercise of the electoral right of the voters.

310. In (1958) 19 Ele LR 203 (Ele. Tri. Orissa) a case of undue influence was sought to be made out inter alia by the publication of a booklet which had in its cover page a photograph of one S. who had been killed during the police firing. with the caption "Do not vote for the Congress who had killed S". In the judgment in appeal from the Election Tribunal Barman, J., remarked (at p. 217):

"A voter must be able to freely exercise his electoral right. He must be a free agent. All influences are not necessarily undue or unlawful. Legitimate exercise of influence by a political or association or even an individual should not be confused with undue influence. Persuasion may be quite legitimate and may be fairly pressed on the voters. On the other hand, pressure of whatever character, whether acting on the fears, threat, etc., if so exercised as to overpower the volition without convincing the judgment is a species of restraint which interferes with the free exercise of electoral right. In such an atmosphere, the free play of the electors judgment, discretion or wishes is overborne and this will constitute undue influence though no force is either used or threatened. It is not necessary to establish that actual violence had been used or even threatened. Methods of inducement which are so powerful as to leave no free will to the voter in the exercise of his choice may amount to undue influence. Imaginary terror may have been created sufficient to deprive him of free agency."

310-A. With regard to the poster with the picture, the learned Judge said (at p. 219):

"It was an artful device to catch the imagination of the voters. It terrorised the voters and was likely to create in-their mind a feeling of terror, fear, hatred or strong prejudice against the Congress. .......... It at least did create or was likely to create or had the tendency to create terror and an unknown fear in the mind of the voters. The picture of the dead boy with the caption frightened the voters or was likely to frighten them and it was intended to overawe voters which interfered or was likely to interfere or had the tendency to interfere with the free exercise of electoral right of the voters."

310-B. The learned Judge was in favour of allowing the appeal but his colleague, Rao, J., expressed a different view. According to him (p. 234):

"The picture simply represents Sunil De after being shot at by the police firing with the caption underneath "Do not vote for the Congress who killed Sahid Sunil." It does not say that if the voters give their votes for the Congress all the voters or some of them would be shot as Sunil De."

311. The matter was referred to Das, J., by the Chief Justice in view of difference of opinion between Barman and Rao, JJ. According to this Judge no undue influence was exercised because nothing had been stated in the photo Ex. 3 relating to the picture and there was no statement that if the voters gave their votes to the Congress, they would be shot at as Sunil and accordingly.

"respondent No. 1 could not have intended to cause any fear in the minds of the voters by the above publication to constitute interference with the free exercise of the electoral right of the voters."

312. In AIR 1959 Orissa 188 an unsuccessful candidate charged the returned candidate along with other persons with having committed undue influence by publication of a pamphlet in which it was alleged that deliberate false statements of facts in relation to his personal conduct and character had been made. In hearing the appeal Das, J., who delivered the judgment of the Court referred to the definition in Section 123 (2) of the Representation of the People Act and said:

"There is nothing in the definition that such interference or attempt at interference should be by any method of compulsion. Evidently, the offence includes such interference or attempt to interfere by any method, and it definitely includes the method of inducement wherein there may not be any compulsion at all. The inducement again must be of such powerful type as would leave no free will to the voter in the exercise of his electoral right."

312-A. On the evidence the learned Judge held (at p. 193) that there was admission by the respondent himself and it was abundantly clear that the returned candidate had acted conjointly with his agent in publishing and circulation Ex. 5 as a result of which the election of the petitioner was materially affected. In 1959 Supp (2) SCR 748 = (AIR 1962 SC 855) a question arose as to whether a command from Shri Sat Guru Sacha Padshah to the Namdharies Halqa - Sirsa that every Namdhari should vote for the success of Ram Dayal Vaid, it being a primary duty to make him successful in the election amounted to the exercise of undue influence. No doubt the command was from a person who was a religious leader and as such had a great influence on the Namdharies. The Court expressed the view that 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, and 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 confidence of the electors. Such a course of conduct on his part, would amount to an abuse of his great influence if the words used in a document, or utterances in his speeches leave no choice to the person addressed by him in the exercise of his electoral right. Incidentally it may be noted that the learned Judges stressed what was material under the Indian law was not the actual effect produced but the doing of such acts as were calculated to interfere with the free exercise of an electoral right.

313. In 1962 Supp (3) SCR 114 = (AIR 1962 SC 1156 [LQ/SC/1962/64] ) the charge against the returned candidate was that he had been guilty of the exercise of undue influence inasmuch as a pamphlet containing a false statement that the respondent No. 2 was "purchaser of the opponents of the Congress by means of money" was issued by the agent of the respondent with his consent. Respondent No.1 contended that the statement related to the public or political character of respondent No. 2 and not to his private character. In his judgment, Gajendragadkar, J., said (p. 122 of SCR Supp) = (at p.1159 of AIR):

"Circulation of false statements about the private or personal character of the candidate during the period preceding elections is likely to work against the freedom of election itself inasmuch as the effect created by false statements cannot be met by denials in proper time and so the constituency has to be protected against the circulation of false statements which are likely to affect the voting of the electors."

With regard to the allegation in the pamphlet already mentioned the Court took the view that:

"In plain terms, the statement amounts to an allegation that respondent No. 2 buys by offering bribes the votes of the opponents of the Congress. ..... Offering a bribe in an election introduces an element of moral turpitude and it cannot be denied that a person who offers bride loses reputation as an individual in the eyes of the public."

The scope of Section 171-C, Indian Penal Code was considered in the recent decision of (1968) 2 SCR 133 [LQ/SC/1967/317] = (AIR 1968 SC 904 [LQ/SC/1967/317] ). This case is not an authority directly in point but some observations made by Wanchoo, C. J., may not be out of place. Delivering the judgment of the Court his Lordship remarked (p. 145) (of SCR) = (at p. 911 of AIR) 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 Sec. 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 (2) of Section 171-C shows what the nature of undue in 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 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. ...What is contained in Sub-section (2) of Section 171-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. This is a matter to be determined in each case."

The question which primarily engaged the attention of this Court in the above case was, whether a letter addressed by the Prime Minister to all the electors in which she commended Dr. Zakir Husain and requested the electors to vote for him amounted to the exercise of undue influence and on the facts of the case the answer was in the negative.

314.The above citation of the cases is in our view sufficient to reject the contention of Mr. Daphtary that in order to establish undue influence it must be shown that there was some threat to a voter or at least an element of compulsion in the appeal to him. The cases also show that it would be futile to attempt to lay down a simple test applicable to all sets of facts and circumstances where undue influence is alleged to have been exercised. It can however be said that an attempt on the part of anybody to deflect a voters will away from a particular candidate by creating prejudice against or hatred for him, as for instance by casting false aspersions on his personal character and conduct whether by spoken words or in writing may be sufficient for the purpose of establishing the commission of undue influence. Much would however depend on the nature of the attempt, the position of the person making it and the manner in which it is made. The mere publication by postal dispatch of an anonymous but scurrilous pamphlet regarding the personal character of a candidate to voters all and sundry might attract the operation of Sec. 171-G of the Indian Penal Code but would fall short of Section 171-C. But if such a pamphlet is pressed upon voters and methods of inducement applied to them, specially by others who are equally interested in the election different considerations may well arise. In such a case a court of law may legitimately hold that the disseminators of the pamphlet were attempting to canalise or force the will of others away from the person whose character was assailed. Few would take any serious notice of an anonymous pamphlet however scurrilous it may be, if it were pasted on the walls of houses within the constituency where the election is to be held. Similar would be the fate of such a pamphlet disseminated by post.Persons who receive such a pamphlet would either throw it away or express surprise that such aspersions were being made against a person like Shri Sanjeeva Reddy who has held high offices. I do not think that such dissemination, although mean and ignoble, would have any effect on the minds of persons who belong to the electoral college for the election of a person to the office of the President of India.But if the disseminators of such pamphlets were persons holding responsible offices or persons who belonged to the same category as the recipients and tried to induce the latter to take a particular line of action in a forthcoming election on a personal appeal based on such pamphlets, it would not be difficult to hold that their influence was being exercised unduly and corruptly and an offence committed within the meaning of Section 171-C. Mere dissemination of such pamphlets even by hand of well-placed persons would not be enough for such purpose.The pamphlet in this case plumbs depths of filth and meanness seldom reached. It was not a mere attempt to dub Sri Sanjeeva Reddy as a man generally devoid of good principles. It accused him of conduct wholly unbefitting a gentleman not to speak of a person who aspired for election to the high office of the President of India and charged him with acts of misdemeanour towards members of the other sex giving instances and in most cases mentioning the occasions at which he is said to have committed the indecent act imputed to him.It was calculated to engender strong prejudice in the minds of electors against Sri Sanjeeva Reddy both in his personal capacity and as being the nominee of a group of persons described as usurpers of power in the Congress Party. It is difficult to find suitable words to condemn the making and publication of such a vile pamphlet in an election to the highest office in the landand it is certainly a great pity that the authors thereof have not been tracked or suitably dealt with.

315. Having concluded that the use of scurrilous pamphlet of the type disclosed in this (sic) (Case) may be a step in the commission of undue influence within the meaning of Section 171-C of the Penal Code, I have to consider the evidence adduced to find out the extent of its publication and the manner in which it was published and used before it can be held that undue influence was in fact brought to bear upon the minds of certain electors. One has next to ascertain whether the offence of undue influence was committed by the respondent or by any of his workers with his connivance. If neither of these be proved, we have to sift the evidence to see whether the offence was committed by others to an extent which materially affected the result of the election.

316. Counsel for the parties argued at some length on the question as to the standard of proof required to establish the commission of the offence of undue influence. As the malpractice is an offence under the Indian Penal Code and attracts punishment by way of imprisonment, Mr. Daphtary argued that the standard of proof required is a much higher one than in ordinary civil cases. According to him the charge must be well and truly laid in the petition and its particulars and evidence adduced in proof thereof as would leave no scope for any reasonable doubt that the offence has been committed by the persons charged therewith. Mr. Daphtary laid great stress on the production of evidence strictly following the pleadings and contended that no deviation therefrom was permissible. The petitioners according to him could not be allowed to abandon or jettison the case raised in the pleadings and ask the Court to hold on the evidence adduced that the offence of undue influence has been committed by some persons although the manner of commission as laid down in the pleadings was not borne out by the evidence. He also argued that as these persons were not parties to the proceedings they were under no compulsion to come and give evidence in Court and the respondent owed no duty to call all or any of them to disprove the charges levelled against them. Mr. Daphtarys argument seemed to suggest that the petition and the particulars thereof supplied later were to be considered in the same light as the first information report in a criminal case and the Court should weigh the evidence given at the hearing in the same way as in a criminal trial and if there was a significant departure in the evidence from the charges levelled in the petition, hold that the commission of the offence pleaded was not established.

317. Counsel for the petitioners argued that the paramount duty of the Court in such cases was to uphold the validity of an election only if it was pure and although the Court should be slow in upsetting the result of an election on mere trivialities or irregularities it should not hesitate to do so when the evidence disclosed commission of corrupt practice on a large scale merely because of the deviation of the evidence from the pleading. It was further suggested that although the charges savoured of criminality they were not investigated as in a criminal case but the hearing of the election petition was more akin to that in a civil proceeding and the Court should come to its conclusion on the issues framed and the evidence adduced not on the balance of probabilities but on the strength of the direct evidence adduced.

318. This question has engaged the attention of this Court on prior occasions and reference may be made to some of them to see the views expressed therein. In Mohan Singh v. Bhanwarlal, (1964) 5 SCR 12 [LQ/SC/1963/226] = (AIR 1964 SC 1366 [LQ/SC/1963/226] ) where charges of corrupt practice had been levelled it was said:

"The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous."

319. Much to the same effect was the decision of this Court in Jagdev Singh v Pratap Singh, AIR 1965 SC 183 [LQ/SC/1964/36] .

320. In Samant N. Balakrishna v. George Fernandez, (1969) 3 SCR 603 [LQ/SC/1969/63] = (AIR 1969 SC 1201 [LQ/SC/1969/63] ) it was said (see at p. 637) (of SCR) = (at p. 1221 of AIR):

"Although the trial of an election petition is made in accordance with the Code of Civil Procedure, it has been laid down that a corrupt practice must be proved in the same way as a criminal charge is proved. In other words, the election petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent."

All the three cases mentioned above were tried under the Representation of the People Act, 1951 the relevant provisions of which are somewhat different from those in the Act of 1952. Under the 1951 Act an election can be declared to be void, if, inter alia the High Court is of opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. Section 123 of the Act of 1951 specifies what are the corrupt practices for the purposes of the Act. Section 99 of the Act of 1951 makes it incumbent upon the High Court when it declares the election of a returned candidate to be void on the basis of a charge made in the petition of any corrupt practice having been committed at the election, to record a finding whether any corrupt practice has or has not been proved to have been committed; but a person who is not a party to the petition is not to be named by the High Court under this section unless he has been given notice to appear before the High Court and to show cause why he should not be so named. Liberty is also given to him in case he appears in pursuance of the notice to cross-examine any witness who has already been examined by the High Court and calling evidence in his defence and of being heard. The Act of 1952 does not contain any similar provision.

321.There can be no doubt that a charge of undue influence is in the nature of a criminal charge and must be proved by cogent and reliable evidence not on the mere ground of balance of probability but on reasonable certainty that the persons charged therewith have committed the offence on the strength of evidence which leaves no scope for doubt as to whether they had or had not done so. It must also be remembered that even if there be no provision in the Act of 1952 of giving notice to the persons who are charged with having committed undue influence or of impleading them as parties, it is the duty of the election petitioners to lead direct evidence on the point and the respondent cannot take shelter behind the plea that he owes no duty to call them or to disprove the allegations made against them if he is to have his election maintained by the Court. There is a special provision in the Act of 1952 which is absent from the Act of 1951 in that an election may be set aside on the ground of the commission of undue influence by persons who are not agents of the returned candidate and whose action has not been connived at by him if the Court finds that the result of the election has been materially affected by the commission of undue influence by outsiders and complete strangers to the election. The analogy of the trial of an election petition with that of a criminal charge cannot be pushed too far. There are inherent differences between the two in the matter of investigation. The vital point of identity in the two trials is that the Court must be able to come to a conclusion beyond any reasonable doubt as to the commission of a corrupt practice. The Court looks for reliable independent evidence to establish charges of a criminal nature but unfortunately such evidence is found to be lacking in a great many cases.It is well known that even in cases where persons are charged with murder, independent witnesses fight shy of the witness box and are not called to support the prosecution case; the Judge hearing such a case has to make up his mind on this evidence of witnesses who are partisan in the sense that they are related to the victim and sift the same carefully to make up his mind whether the charge is established.The same is the case in the trial of most of the election petitions. Election petitioners nearly always examine persons who are their supporters, while the returned candidate follows the same course. This takes place in particular where charges of undue influence and bribery are levelled. However onerous the task of the Court may be because of the partisan nature of the witnesses, it cannot reject the oral evidence adduced merely on that ground, but it has to examine the same carefully and come to a conclusion whether the evidence establishes the corrupt practice beyond reasonable doubt. Even in a criminal trial the Court can hold a person guilty of a crime on the strength of evidence of partisan witnesses if they are found to be reliable although there may be no independent corroboration thereof and I see no reason to depart from that principle in the trial of an election petition where charges of offences culpable under the Indian Penal Code are levelled.

322. In this case no less than 116 witnesses were examined, 55 on the side of the petitioners and 61 on the side of the respondent. A good many of the witnesses are persons who have held or still hold high offices. Excluding a few nearly all of them are elected representatives of the people either to the Houses of Parliament or to the Legislative Assemblies of the States. They are men whose evidence in the ordinary course of things should carry great weight but unfortunately a good many of them are members of two hostile camps who came to Court resolved to do their best for one side or the other. It is well known that the old Congress Party is no longer united and that there has been a sharp cleavage among its members and before the hearing of the election petitions one group came to be known as Congress (O) and the other Congress (R). The cleavage is referred to in the petition itself. Persons who have figured as witnesses but do not belong to either of these parties generally but not universally have their affinity for one side or the other. It has also come out in evidence that the split in the Congress Party originated back in April 1969 when there was a meeting of the A. I. C. C. at Faridabad. The difference of opinion seemed to stem from opposite views held by some leading members about the steps to be taken for the economic progress of the country. It came out clearly in the evidence of Sri Shankar Dayal Sharma (a witness for the respondent) and a member of Madhya Pradesh Legislative Assembly who had been in public life for about 32 years. He became a member of the All India Congress Working Committee in January 1968 and was appointed General Secretary of the Indian National Congress in April 1968. He continued in that post till the 1st November, 1969, when he submitted his resignation at the request of the then Congress President, Sri Nijalingappa. His evidence which was not challenged in cross-examination shows that at Faridabad session a new procedure was adopted for splitting the A. I. C. C. into three panels. In the economic panel serious differences arose between the members especially between the Chairman, Shri Morarji Desai and some of its members and no report could be finalised. According to the witness there was a demand for nationalisation of banks by some members which was resisted by the Chairman and some others. It is not necessary to mention the various points of difference between the members of the panel but according to this witness the Prime Minister and Shri Morarji Desai held contrary views on this point.

323. According to Sri Nijalingappa who figured as a witness for the petitioners the question of selecting a person fit for the office of the President arose very soon after the demise of Dr. Zakir Hussain early in May 1969. He claimed to have sounded the Prime Minister on more than one occasion in the months of May and June to fix upon a proper person for the office but nothing resulted. When they met at Bangalore in July 1969 the question cropped up again. The Prime Minister told him at the meeting of the 12th July that she had the respondent in her mind but she found no encouraging response to her proposal. Sri Nijalingappa then said that members might suggest other names whereupon the Prime Minister proposed the name of Sri Jagjiwan Ram and Sri S. K. Patil suggested the name of Sri Sanjeeva Reddy. As no agreement could be arrived at, the matter was put to vote and Sri S. K. Patil, Sri, Maorarji Desai, Sri Chavan and Sri Kamaraj Nadar were in favour of Sri Sanjeeva Reddy while the Prime Minister and Sri Fakhrudin Ali Ahmed supported Sri Jagjivan Ram. Neither Sri Jagjiwan Ram nor Sri Nijalingappa expressed any opinion. According to Sri Nijalingappa, the Prime Minister expressed unhappiness over it and said that serious consequences may follow.

324. It is the case of the petitioners as brought out in the evidence that although the Prime Minister signed the nomination paper of Sri Sanjeeva Reddy within a few days thereafter she did not take any other step to ensure his success at the election. It is also in evidence - and is a matter of common knowledge - that immediately after the conclusion of the Bangalore Session the portfolio of Finance was withdrawn from Sri Morarji Desai and the Bank Nationalisation Ordinance was promulgated just before the meeting of Parliament in July 1969. The split in the party which had been dormant before came to limelight soon afterwards. Although the two conflicting groups came to be known as Congress (O) and Congress (R) some time thereafter, there can be little doubt that the seed of dissemination was bearing front and mutual suspicion between the members of the two groups came to the surface. The Presidential election which was held on 16th August 1969, was in the offing but it seemed to have been made the venue for clash of ideologies and test of strength. According to Sri I. K. Gujral a witness for the respondent, the undercurrent of difference between the parties since the Bangalore Session of the Congress came to the surface early in August 1969, the decisive factor being Smt. Tarkeshwari Sinhas article in the Search Light suggesting a move to throw out the Prime Minister. According to Sri Gujral many people were or the view that the Congress President Sri Nijalingappa had tried to make a deal with Sri Ranga of Swatantra Party and Jan Sangh for a coalition Government and the election of Sri Sanjeeva Reddy as President was considered to be a step in that direction.

325. That there was a sharp difference of opinion and the arraying of members into two warring camps at or about that time admits of no doubt or dispute. Whoever be the authors or the printers of it, the distribution of the pamphlet started round about 9th or 10th August. From the 11th August correspondence started between Sri Jagjiwan Ram and Sri Fakhrudin Ali Ahmed on the one side and Sri Nijalingappa on the other, as well as between the Prime Minister and Sri Nijalingappa. As a matter of fact the correspondence between the Prime Minister and Sri Nijalingappa had started as early as 16th July. In the letter of that date (Ex. p-41) the Prime Minister complained that she was deeply distressed by the stories in the Press attributing all kinds of motives to her and said that newspaper speculations about her alleged reaction to the decision of the Parliamentary Board were wholly misconceived and inspired by interested elements. On August 11, 1969 Sri Jagjivan Ram and Sri Fakhruddin Ali Ahmed wrote to Sri Nijalingappa:

"Considerable confusion exists in the minds of numerous members of our Parliamentary Board regarding the talks made on your own initiative with some of the leaders of the Jan Sangh and Swatantra Party and that it was claimed that as a direct result of your talks the Jan Sangh Executive has decided to support Sanjeeva Reddy."

The writers complained that the members of the Congress Party were considerably agitated over this and ugly rumors were afloat and the situation had worsened because those whom Sri Nijalingappa had approached and their representatives had openly demanded the removal of the Prime Minister. They ended the letter by saying:

"Unless the whole position was fully clarified and the basis of Sri Nijalingappas talks and the readiness of the other parties to support Shri Sanjeeva Reddy were satisfactorily disclosed it might have great repercussions on the presidential election."

To this Sri Nijalingappa replied on August 13th saying that although he had met the writers the day before the points raised in the letter had never been canvassed. Sri Nijalingappa further stated that he had been approaching every party for its support and requesting every voter for his vote in favour of Sri Sanjeeva Reddy in accordance with past traditions. Correspondence went on in the same vain upto the 18th August, even after the taking of the poll. According to Sri Nijalingappas letter to the Prime Minister dated the 15th August, the members of the Parliamentary Board had agreed on the 1st August that he might contact all parties and voters to seek for their support and he had reported to the Congress Parliamentary Board meeting held on the 5th about his talks with the opposition parties. Further there never was any understanding with Jan Sangh or the Swatantra Party beyond seeking their support at the Presidential Election and the demand for a free vote which had already been raised was in fact a claim of right to vote for the respondent, a candidate nominated by the Communists and Communalists.

326. No useful purpose will be served by referring to the said correspondence in detail and mention has been briefly made of the same only to bring out in sharp focus the difference between the two focus the difference between the two groups. Members of the two groups who have appeared as witnesses in this case had definitely taken sides some days before the date of the poll. According to some witnesses examined on behalf of the respondent, the manner of selection of Sri Sanjeeva Reddy was against all past traditions of the Congress as no attempt at consensus was made before the matter was put to vote. Some even felt that the Prime Minister should not have been over-borne in the way she has done on the 12th July. Whatever might be the individual reactions of the members of the two groups, there is no gain saying that there was a strong current of opposition to the election of Sri Sanjeeva Reddy as President of India and more than one witness for the respondent including Sri Yunus Saleem admitted that there was a campaign for getting signatures of members of Parliament on a document demanding the right to vote freely in the election. This in effect meant the right to vote against the party affiliation although it was termed a right to vote according to conscience.

327. I now proceed to consider the contents of the pamphlet in detail and then examine the evidence adduced to find out whether any and if so, what use was made of it by any one in a manner which could be said to amount to an attempt to interfere with the free exercise of any persons electoral right within the meaning of Section 171-C of the Indian Penal Code. It is also necessary to scrutinise the evidence to see whether the charge levelled by the petitioners that the pamphlet was the work of a group of people supporting the Prime minister and secretly working for the success of the respondent is borne out.

328. Although the pamphlet on the face of it was anonymous, there are certain indications in it to show its probable origin. The document purports to be addressed to "fellow Congress members of Parliament and the Vidhan Sabhas" by "Congress Workers Committee to combat the Syndicate" and bears the date 9th August. It starts off thus:

"Our great Party (obviously referring to the Congress Party) which led the entire nation in the struggle against British rule and had the glory of bringing independence for our motherland, has to-day fallen into a slur of despondence and demoralisation. Into its leadership have crept in men whose record shows that they have sold their conscience to the rich and the corrupt, who are seeking to destroy all attempts of harnessing the Congress once again to the service of the common people."

It then goes on to charge that:

"Self-seekers infiltrated into this great organisation... After Panditjis death it is a small click of unscrupulous persons who landed themselves into what is called the Syndicate and have tried to become virtual dictators."

It ascribes the heavy defeat suffered by the Congress Party in the general election of 1967 to the management of its affairs by evil men. The reference seems to be to Sri S. K. Patil, Sri Atulya Ghosh and Sri Kamaraj. It then proceeds to state (a) that at the then recent Banglore session of All India Congress Committee the Prime Minister set out a programmer for immediate reforms in the economy of the country, (b) this not being to the liking of a small coterie described as gangster politicians they decided to set up one of their men, a corrupt and immoral person, Sanjeeva Reddy as the Congress candidate for the august post of President of India" and (c) this selection was made not only against the wishes of the Prime Minister of India but also without caring to consult the Congress Working Committee, Pradesh Congress leaders and the addressees. The pamphlet then seeks to analysis the reason being this choice. To quote the words of the pamphlet itself:

"That is because Sanjeeva Reddy himself belongs to this gang. Also the syndicates plan is that if Sanjeeva Reddy could be made President of India then it will be easier to block all enlightened measures; as President he will obstruct the present Government at every step whenever any action is taken against corruption or in the interest of the common people. The Syndicates agents in Parliament have been openly saying that if Sanjeeva Reddy becomes the President, they will drive out Smt. Indira Gandhi in a few weeks. They are all the more enraged at the nationalisation of the 14 big banks which were only helping big capitalists to profiteer and amass black money. The syndicate is scared that such measures would make Indira Gandhi more popular with the common man while they themselves have for feinted the confidence of the vast millions of our country. How panicky they are could be seen from the scurrilous writings of one of their lieutenants Tarakeshwari Sinha openly threatening that the syndicate will fight and defeat Indira Gandhi. These unscrupulous bosses prefer that the Congress should suffer a crushing defeat in next general elections in 1972 rather than that our Prime Minister becomes stronger. For they look upon Indira Gandhi as a thorn in their path; and they think the only way to corner her would be to make Sanjeeva Reddy the President ......

It is as part of this conspiracy of the syndicate that Nijalingappa, another syndicate boss (against whom there are many grave charges of corruption) has already approached the Swatantra Party and the Jan Sangh, secretly planning with those anti-national parties for a coalition government with the syndicate leaders."

329. The rest of the pamphlet is aimed at denigrating Sri Sanjeeva Reddy. It charges him with being a corrupt and unscrupulous politician whose misdeeds had been severely condemned by the High Court of Andra Pradesh in 1964 and whose record as a Minister for Steel in the Central Cabinet had been so bad that he had to be dropped after the general election of 1967 and was put up as a Speaker of Lok Sabha on the pressure of the syndicate. The pamphlet proceeds to give instances of acts of misdemeanor to give instances of acts of misdemeanour committed by Sri Sanjeev Reddy towards members of the other sex. It ends up with an exhortation to the addressees that if they have to carry forward the programme of the Congress in the service of the Indian people and to weed out corruption, nepotism and racketeering, they have to use their powers to defeat the syndicate inter alia by rejecting Sri Sanjeeva Reddy. The pamphlet winds up with the following:

"On each and every one of us lies the sacred responsibility of seeing to it that this living monument of moral depravity does not become the President of India. Remember this when you cast your vote in the ballot box on 16th August, 1969."

330. Although Mr. Daphtary put up a faint argument that this might be the work of any party or group opposing the Congress and interested in its decline and fall, one cannot unreasonably take the view that in all likelihood a group of disgruntled Congress members were at the back of it. It is to be noted that in the whole of the pamphlet which is a fairly long one, there is no reference to any other party excepting where Sri Nijalingappa is described as having approached the Swatantra and Jan Sangh for a coalition Government. There is no reference to the respondent or any other candidate at the election and there is no attempt to belittle or ridicule the members of any of the many other political parties in the country.

331. At or about this time there was frequent reference in the daily newspapers to a group in the Congress dubbed as syndicate and another group described as young Turks who were in open rebellion against the syndicate. The pamphlet shows that the authors thereof were of the view that the Prime Minister was attempting to give what according to them was a correct lead to the country and that she was sought to be thwarted by the members of the syndicate. So much so that the latter were said to have entered into a conspiracy to oust the Prime Minister from her position and set up a coalition government. This is sought to be supported by writing ascribed to Smt. Tarkeshwari Sinha as openly threatening the defeat of the Prime Minister by the syndicate. There are thus strong indications in the pamphlet to show where it could have come from and who were interested in the defeat of Sri Sanjeeva Reddy and the motive behind this move. It has come out in the evidence of a number of persons examined on behalf of the respondent some of whom admitted themselves to have been described in the press as young Turks, that their views about the management of the affairs of the Congress Party by some senior members of it described as syndicate was similar to that expressed in the pamphlet. Sri Krishna Kant (R.W. 32) admitted that he himself, Sri Chandrasekhar (R.W.5) Sri Mohan Dharia (R.W.17) Sri Santi Kothari (not examined) Sri Amrit Nahta (R.W.3), Sri Sashi Bhushan (R. W. 38) Sri. R. K. Sinha (R. W. 8) and others were described as young Turks and that the syndicate was composed, according to the press, of members like Sri Nijalinagappa, Sri Atulya Ghosh, Sri S. K. Patil and others. Sri Sanjeeva Reddy according to this witness was also considered to be a part of the Syndicate. Most of these persons when examined openly stated that they had decided to go against the selection of Sri Sanjeeva Reddy by the syndicate, that they were supporting the candidature of the respondent and that there was signature campaign in favour of freedom of vote. Sri Krishna Kant himself admitted having been responsible for getting such signatures and so did Sri Yunus Salem (R.W. 51). Sri Krishna Kant frankly admitted that when they could not support Sri Sanjeeva Reddy they could not possibly support Sri Deshmukh, another candidate at the election who was a Jan Sangh candidate which left only the respondent on the field. Evidence on much the same line was given by other witnesses examined on behalf of the respondent.

332. Shri R. K. Sinha (R.W. 8) stated that "the syndicate was taking the Congress to the funeral pyre in West Bengal, Madras and Kerala". He also said that the majority of the group known as young Turks had declared their support for the respondent. He admitted having made a public speech about this time to the effect that the members of the candidate was opposed to the formation of Congress Socialist Party and had "planned to fill the political vacuum after Pandit Nehru." When his attention was drawn to the pamphlet Sri Sashi Bhushan (R.W. 38) approved of the statements made in the first three paragraphs namely that a set of self-seeking, corrupt and unscrupulous persons had grabbed power in the Congress organisation after the death of Pandit Nehru and it was because of their misdeeds that the party had suffered reverses in the election of 1967. It should be noted that Mohan Dharias attitude in the presidential election was somewhat different from that of the other young Turks. It would appear that the proclivity of this group of persons described as young Turks and their support for the Prime Minister and opposition to the senior members of the Congress fold like Sri S. K. Patil, Sri Kamaraj and others was sought to be utilised in the election petitions by openly averring that the supporters of the Prime Minister were behind the publication and dissemination of the impugned pamphlet. The evidence adduced does not bear this out.

333. The authorship of the pamphlet not being terraced, we have to see whether the dissemination of it in the manner deposed to was sufficient to establish the commission of undue influence. I have no doubt that if the statement contained in the pamphlet were made the subject of a verbal appeal by one member of the electoral college to another and particularly those in the Congress fold, a very strong case for the exercise of undue influence would be made out. There would not in my opinion be much difference between such an appeal and an appeal in writing signed by one elector to another. In such a case it could be said that the elector making the appeal was trying to misuse his position and seeking to influence the other and attempting to interfere with the free exercise of the others electoral right. But the evidence adduced falls far short of the proof of any such case. It is the admitted case of the parties that the pamphlet was very widely disseminated through the post among members of Parliament and members of Legislative Assemblies hailing mostly from U. P. but not being confined to that State alone. The case of the petitioners is that not only was the pamphlet broadcast by post but there was free distribution of it among members of both Houses of Parliament i.e., in the Central Hall of Parliament from the 9th to 15th August. Reference was made to the proceedings of the two Houses to show that complaints about the distribution of filthy pamphlets in the Central hall of Parliament bearing on the Presidential election were being made in the Lok Sabha. Although in the pleading a specific case was made that some prominent members of the Congress Party supporting the Prime Minister like Sri Jagjivan Ram had stone to the residence of certain members of the electrol college for personal delivery of the copies of the pamphlet to them, practically no attempt was made to substantiate such allegation by oral evidence in court. As regards distribution of the pamphlet in the Central Hall of Parliament there was evidence given by the following witnesses for the petitioner, namely, Sri Kanwarlal Gupta (P.W. 2) Sri K. S. Chawda (P.W. 3) Sri N. P. C. Naidu (P. W. 6) Sri Shiv Narain (P.W. 6) Sri Shiv Narain (P. W. 12), Smt. J. B. Shah ((P. W. 3) Sri N. P. C. Naidu (P. W. 6) Sri Shiv Narain (P. W. 12), Smt. J. B. Shah (P. W. 12) Sri N. N. Patel (P. W. 14) Sri Mohanlal Gautam (P. W. 27) Sri C. D. Pandey (P. W. 17) Sri D. N. Deb (P. W. 18) Sri Hukumchand Kachwai (P. W. 20) Sri M. Rampura (P. W. 23) Sri Morarji Desai (P. W. 27), Sri Rab Kishan Gupta (P. W. 30) Sri D. S. Raju (P. W. 35),Sri Patil Putappa (P. W. 36) Sri Sher Khan (P. W. 37) Sri Choudhuri A. Mohamed (P. W. 38) Sri C. M. Kedaria (P. W. 39) Sri N. Ramreddy (P. W. 40) and Sri Abdul Ghani Dar (P. W. 41). On the other hand a substantial number of witnesses examined by the respondent numbering no less than twenty gave evidence to the effect that they never saw any such distribution. Effort was made by counsel for the respondent to establish by cross-examination that such distribution of the pamphlet would not have been allowed by the Watch and Ward department of the Houses of Parliament. Among the persons who were supposed to have been responsible for the distribution in the Central Hall of Parliament the prominent figures were Sri Yunus Saleem, Sri Chandrasekhar, Sri Sashi Bhushan, Sri Mohan Dharia and some others. It is somewhat strange that most of these people when examined not only denied having participated in the distribution but went to the length of stating that they had never seen the pamphlet before they came to court, although some admitted having heard discussion between members regarding it. According to some witnesses for the petitioners prominent among whom were Sri Morarji Desai, Sri S. K. Patil and some others, the pamphlet was the talk of the town for days and the Central hall of Parliament was full of it.

334. There is thus a direct conflict of testimony about the distribution of the pamphlet but there can be little doubt that the pamphlet did find its way in the Central hall and I have no doubt that quite a few copies of it had been distributed in the hall itself. That there was a good deal of talk among the members and discussion over the pamphlet admits of no doubt. It is difficult to believe that unless the pamphlet was there in the Central hall people would be discussing the contents of it in the abstract. No witness suggested that he himself had taken a copy of it to the Central hall. The obvious inference from all this is that there was some distribution in that hall although probably the petitioners were trying to exaggerate the extent of the distribution while witnesses for the respondent were equally interested in denying it wholesale. Hardly any witness came to the witness box to state that he was not only given a copy of the pamphlet in the Central hall but approached and appealed to personally carry out the mandate contained in the concluding portion thereof. The substantial evidence of the witnesses for the petitioners was merely to the effect that copies were being distributed in much the same fashion as hand-bills are distributed by a advertising agents of tradesmen on the street.

[Then after discussing evidence (Paras 335 and 338) His Lordship proceeded.]

339. In my view the evidence falls far short of any personal appeal through the means of the pamphlet and I cannot hold that the offence of undue influence was committed by some people by merely distributing the same. Such distribution may attract culpability under S. 171-G of the Indian Penal Code but would not per se attract Section 171-C.

340. I do not, therefore, find it necessary to refer to the evidence of witnesses for the respondent on the question of the exercise of undue influence by distribution of the pamphlet. While I find myself unable to say that they were all speaking the truth when they said that they had not seen the distribution of it in the Central Hall or that they had not seen a copy of the pamphlet before he came to the witness-box. I cannot hold in favour of the petitioners merely because some of the witnesses for the respondent were not witnesses of truth. I would be unprofitable to examine the evidence closely to find out where they lied or the extent of untruth uttered by them. Such an analysis might have become necessary if I had come to the conclusion that there was a prima facie case made out by the petitioners about the exercise of undue influence by mere dissemination of the pamphlet which could be contradicted by the respondents witnesses.

341. The above being my view on the question of the exercise of undue influence by means of the publication of the pamphlet and the dissemination of it, the question of the respondents conniving at it does not arise. I may however indicate shortly the respective cases of the parties. It was the case of the petitioners that the pamphlet originated from the camp of the Prime Minister and her supporters who were actively helping the respondent in his election campaign and it was these supporters who had taken to the mean trick of publication of the pamphlet at the eleventh hour before the election so that there could be no effective counter-action to the wild propaganda. Whatever the charges raised against the Prime Minister in the petition, no evidence was adduced to show that she was helping the respondent although it may be said that she did not help the cause of Sri Sanjeeva Reddy in the way she had done in the case of Dr. Zakir Hussain. Three witnesses of the petitioners stated in their examination that they had been to the respondents house in Defence Colony after the commencement of the publication of the pamphlet requesting him to make a statement of the publication of the pamphlet requesting him to make a statement himself in contradiction of the allegations contained therein and making it clear that he himself had nothing to do with it. It is difficult to appreciate what led these persons to think that the respondent had anything to do with the pamphlet or that he was the proper person to issue a contradiction to the imputations therein made against Sri Sanjeeva Reddy. As I have already noted, the name of the respondent does not occur at all in the pamphlet nor is there any remote reference to him in it. The respondent was not the only other contestant for the office. Shri Madhu Limaye, P.W. 8, and some witnesses for the respondent thought that it was the work of enemies of the respondent. Any statement of the respondent disowning the pamphlet or even asking the electors to ignore it would only excite suspicion against him as involved in its publication. Sri N.P.C. Naidu, P.W.17 who claimed to have a copy of the pamphlet from Sri Yunus Saleem on the 11th or 12th August, said that he had gone to the respondents house in Defence Colony to get a contradiction to the pamphlet but could not meet him, as a result the talk he had with the respondents supporters who were there and later wrote a letter to him asking him to counteract the propaganda in the pamphlet. The respondent, however, denied having received any such letter. Smt. Tarkeshwari Sinha, P.W. 34, said that she had gone to the respondents house in Defence Colony on the 14th August and had met him in a verandah and shown the pamphlet to him and asked him to repudiate the contents thereof when the respondent had said "what can I do about it". As the respondent was unresponsive she had to come away. Not only was this visit openly disputed by the respondent but several witnesses were examined to show that she had not gone there. The security man said to have been posted in the respondents house deposed to the effect that he knew Smt. Tarkeshwari Sinha and was positive that she had not gone there on the 14th August. The respondent himself said that the suggestion that in the month of August a visitor of the position of Smt. Tarkeshwari Sinha would have been received by him not in the air-conditioned drawing-room where he was sitting but outside in the uncomfortably hot verandah was fantastic. The respondents son-in-law also gave evidence to the same effect. Sri R. K. Gupta, P. R. 43, said that he had met the respondent two or three days before the date of the poll and told him that the pamphlet should be contradicted by his party when the respondent gave him the same reply as he had done to Smt. Tarkeshwari Sinha. Again, this evidence was denied by the respondent as well as by his son-in-law. The evidence adduced on the two sides is directly contradictory to each other and it would have been the duty of the Court to analyses the same in greater detail and indicate the reasons for accepting one version and rejecting the other if the Court was to take the view that there was exercise of undue influence by the mere dissemination of a sordid pamphlet. In the circumstances of the case it would be useless to go into the question any further.

342. Another allied question which loomed large during the examination of the witnesses was whether the respondent had in his election campaign gone to Lucknow and addressed members of the Legislative Assembly there and canvassed their support in his favour basing his claim on the support of the Prime Minister. This was deposed to in a general way by Sri Ram Singh, P. W. 19, while Sri Mumtaz Mohammad Khan P. W. 44 went further and said that the respondent had told people at Lucknow openly that Sri Sanjeeva Reddy was not a suitable candidate and that there were many stains on his character. Both these witnesses as also Sri Bansidhar Pandey, P. W. 18, Sri Jagdish Prasad, P. W. 20, Sri Rajendrapasad Singh, P. W. 21, Sri Basant Lal Sharma, P. W. 22, Sri Rampyare Panika, P.W. 37 and Shri Abdul Saleem Shah, P. W. 38 deposed to the effect that two or three days after the visit of the respondent to Lucknow, Sri Dinesh Singh, the External Affairs Minister, had also gone there, met the members of the Legislative Assembly in groups of four or five in their hostel known as Darul-Shafa and openly told them that the respondent was the candidate of the Prime Minister and that if the addresses did not support his candidature they would lose all the patronage of the Prime Minister in the future. Some even said that Sri Dinesh Singh had threatened them with refusal of party tickets in future elections if they were to go against the wishes of the Prime Minister. So far as the part imputed to Sri Dinesh Singh is concerned, he denied having moved out of Delhi between the 1st and 16th August and said that his first visit to Lucknow about this time was on 22nd. August after the poll had taken place. It was put to him in his examination-in-chief as to whether he did go to Lucknow on the 9th, 10th or 11th August and his answer was in the negative and he averred that so far as he could recollect he had not gone to Lucknow before the 22nd, Sri Dinesh Singh was subjected to prolonged cross-examination and the diaries of his engagements maintained by his secretaries were made the subject of close scrutiny before the Court. The evidence of Sri Dinesh Singh and of several other witnesses for the respondent was to the effect that whenever Sri Dinesh Singh left Delhi a tour programme would be issued for the guidance of officers in places to be visited by him and no such tour programme was issued in the month of August before the 22nd. Sri Dinesh Singh further stated that he had attended an invitation to a party at Mysore House given by Sri G. S. Pathak the then Governor of Mysore. In this he was supported by Sri I. K. Gujral who produced a letter of invitation confirming the throwing out of a party at the Mysore Home by Sri G. S. Pathak on the 10th August and invitation to him thereat and stated that he distinctly remembered having met Sri Dinesh Singh in that party. Quite a number of witnesses examined on behalf of the respondent gave evidence to the effect that if Sri Dinesh Singh had gone to Lucknow between the 1st and 16th August they would have come to know of it and so far as their recollection went Sri Dinesh Singh did not go there during that period. While it is true that the diaries produced by the Secretaries of Sri Dinesh Singh were not as full or complete as regards his engagements as one might expect them to be, I have no hesitation in holding that Sri Dinesh Singh did speak the truth in that he did not go to Lucknow during the period 1st to 16th August. It has come out in evidence that Shri Abdul Ghani Dar was preparing to launch an election petition against the respondent practically immediately after the declaration of the result and that he was busy collecting evidence in support of his petition. Apart from the absence of any tour programme of Sri Dinesh Singh it should not have been difficult for the petitioner to produce evidence either from the records of the railways or the Indian Airlines to show that some reservation of accommodation had been made for Sri Dinesh Singhs journey to Lucknow and back at or about this time. No attempt was made to produce any such records. Counsel for the petitioners even went to the length of suggesting to Sri Dinesh Singh in cross-examination that it was possible for him to have travelled to Lucknow from Delhi by road and come back the same way so as to leave no record of reservation either by rail or by air. In my view, the suggestion is of little value. After all even according to the evidence of witnesses for the petitioner Sri Dinesh Singhs visit was not a secret one. He is supposed to have gone there to meet people in order to canvass support for the respondent from a large number of members of the U. P. Legislative Assembly and there was no reason why he should try and avoid a more comfortable journey by rail or air rather than undertake motor-car journeys of over 300 miles each way. My definite conclusion is that Sri Dinesh Singh did not go to Lucknow as alleged by some of the witnesses for the petitioners at or about that time alleged and consequently he did not canvass support in favour of the respondent as imputed to him.

343. As regards the evidence of the two witnesses about the respondent addressing members of the Legislative Assembly of U. P. in his own support by saying that he was the candidate of the Prime Minister or that Sri Sanjeeva Reddy was not a fit person for election to the high office of the President of India. I have no hesitation in holding that it cannot be true. According to the evidence of Sri Mumtaz Mohammad Khan, P. W. 44, the persons present at the time when the respondent was castigating Sri Sanjeeva Reddy were Sri Basant Lal Sharma, Sri Abdul Saleem Shah and Sri Kalpanath Singh. Sri Kalpanath Singh was not examined but the other two were and neither of them had anything to say on this subject. According to Sri Abdul Saleem Shah it was Sri Dinesh Singh who had told the members of the Legislative Assembly at Darul Shafa that Sri Sanjeeva Reddy and his group were working in collusion with Jan Sangh and it would not be proper to vote for him. Sri Dinesh Singh is also alleged to have said that Sri Fakhrudin Ali Ahmed wanted that no Muslim should vote for Sri Sanjeeva Reddy as he and his supporters were anti-Muslim. As I have held that Sri Dinesh Singh did not go to Lucknow at the time alleged he could not have canvassed support for the respondent as deposed to by the witnesses.

344. In his evidence the respondent stated that he had not spoken to the Prime Minister or any other Minister before announcing his candidature for the office of the President of India. He had nothing to do with the Congress Party after 1957. After demitting office of the Vice-President of India working as the President, he had left Rashtrapati Bhavan and gone to his son-in-laws place in Defence Colony. He had been out of Delhi from the 28th July, to 13th August going round to the different States; he had come back to Delhi on the 10th August only for a few hours. He admitted having gone to Lucknow on his tour but he did not meet the legislators there in groups as suggested by some of the witnesses but had spoken to them at a fairly well-attended meeting. He denied ever having referred to Sri Sanjeeva Reddy in his speech or said anything about his character. He denied having any knowledge of the distribution of the pamphlet and stated expressly that nobody had even complained to him that a pamphlet against the personal conduct and character of Sri Sanjeeva Reddy was being distributed. He did not see Sri Abdul Ghani Dars letter alleged to have been written to him on the 11th August. He did not meet the Prime Minister between the 20th July and 16th Aug. He said that he had published a programme of his intended tour to the capitals of the different States like Lucknow, Patna, Calcutta, etc. and had informed some of his friends who were taking interest in him about his proposed visits. He stated further that although he had toured the States fairly extensively he did not approach the members of Parliament in Delhi personally as he was fairly well know to them.

345. Counsel for petitioners tried to make out a case that the respondent did not do any canvassing in his own support in Delhi because he was a ware that others were effectively doing it. It was even suggested that some sort of arrangement must have been arrived at in July 1969 that if his name was not acceptable to the Congress Parliamentary Board he would immediately announce his own candidature for the office of the President. The respondent stoutly denied this and said there was no taught in it.

346. In my view the charges levelled against the respondent as mentioned above were not borne out by the evidence.

347. Another aspect of the case of the petitioners under the heading of undue influence was that an attempt was made by a number of persons supporting the respondent to raise a scare to the effect that a vote in favour of Sri Sanjeeva Reddy would be against the interest of persons professing the Muhamedan faith.

[After discussing evidence [Paras 347 to 353] His Lordship proceeded.]

354. Inasmuch as I have come to the conclusion that the evidence adduced does not establish the exercise of undue influence in the election in any of the forms raised in the petition, the question of the result of the election being materially affected thereby does not arise. But I may point out that in order to substantiate such a ground for setting aside an election is not enough for witnesses to come and say that they were shocked or pained by reading the pamphlet as most of them gave out. Only two witnesses came to the witness box and said that they had changed their minds to vote for Sri Sanjeeva Reddy after perusal of the pamphlet. Mr. Daphtary argued that there was nothing in the Act of 1952 which forbade a person from disclosing in his evidence which way he had voted and that it was open to witnesses to come and state the reaction of the pamphlet on their minds and express how it had affected their conduct at the poll. While I do not think it necessary to express any opinion on this it can be safely held that even if the exercise of undue influence had been proved the evidence of only two witnesses to show that their electoral right had been interfered with thereby would not have been enough for the purpose of setting aside the election.

355. My conclusion, therefore, on the issues regarding undue influence may be summed up as follows. There was a fair amount of circulation of the pamphlet, in the Central Hall of Parliament among members of the electoral college by a number of them. Undeniably there was considerable publication of it by post both to electors in Delhi and outside. The mere dissemination of the pamphlet did not amount to exercise of any undue influence or interference with any electoral right. It had to be followed up either by a personal verbal appeal or an appeal in writing but there was no evidence thereof in this case. There was no appeal to Muslim members on grounds of religion to vote in favour of the respondent in preference to Sri Sanjeeva Reddy. There was no evidence of exercise of undue influence by Central Ministers over any members of the electoral college by any threat that in case they failed to vote for the respondent they would lose the patronage of the Prime Minister. The offence of undue influence was not committed by the respondent or any of his workers. The respondent himself was not guilty of any such commission. There was no commission of the offence of undue influence by anybody with the connivance of the respondent and the result of the election was not materially affected as a result of any commission of the offence of undue influence.

356. As regards issue 4 (a) in Election Petitions Nos. 4 and 5 of 1969 my view is that some of the allegations made in the paragraphs 8 (3) and (13) of the petition would be sufficient pleading of commission of undue influence under Section 18 (1) (a) of the Presidential and Vice-Presidential Elections Act, 1952. As regards issue 4 (b), the only allegation, which was substantiated, was a fair amount of publication and dissemination of the scurrilous pamphlet which by itself did not amount to the exercise of undue influence. Sri Abdrul Ghani Dars evidence on this point is wholly unacceptable. My answer to issue 4 (c) in all its branches is in the negative.

357.We indicated on the 11th May 1970 that we would not award any costs to either side. As the respondent has succeeded in the petition normally he could expect to get an award of costs in his favour. But one cannot overlook the fact that the bulk of the oral evidence in this case centered round the question as to whether there was publication of the scurrilous pamphlet in the Central Hall of Parliament. A very large number of petitioners witnesses came to give evidence in support of it while the respondent examined a host of witnesses to disprove this fact. Although in the view I have taken it was not necessary to name the persons who were guilty of such publication, I have already indicated that quite a number of members of Parliament was responsible for it. The hearing of this case was protracted unreasonably by the examination of witnesses on this one question and as the respondent has not succeeded in disproving dissemination of the pamphlet in the Central Hall it would not be right to make an award of costs in his favour. The litigation was not one of an ordinary type and it was conducted with great zeal on either side.It has divulged a sad lack of responsibility and uprightness in the elected representatives of the people figuring either as witnesses for the petitioners or as witnesses for the respondent. In a case like this, where both sides are responsible for putting into the witness-box a large number of persons who deliberately gave evidence which was not true, the proper course is not to award costs even to the successful party.

358. Petitions dismissed.