Hemdhon Mohan vs J.B. Hagjer

C.S. Nayudu, J.—This appeal is directed against the decision of the Election Tribunal at Jorhat in Election Petition No. 59 of 1962 on the file of the said Tribunal.

The facts leading to the filing of this appeal may be briefly noticed. The appellant and the respondent stood for election to the Assam Legislative Assembly for the seat of the North Cachar Hills Constituency of the said Assembly reserved for the Scheduled Tribes. Both the contesting candidates belong to the Scheduled Tribes, the appellant being the official candidate of the People''s Welfare Union Party and the respondent representing the Indian National Congress Party. The holding of the election to this Constituency was notified on 13-1-62 as required by law by the Returning Officer and nominations of the candidates intending to stand for the said election were invited.

Both the appellant and the respondent filed, their nomination papers which were found to be in order and accepted. 19-2-82 was fixed as the date of polling for the constituency in question and the election also took place on the said date. On the counting of the votes polled at the election it was found that a total of 11,848 votes were polled of which 447 votes were found to be defective and rejected. Of the remaining votes, the appellant secured, 5,693 votes whereas the respondent secured 5,708 votes, and was, therefore, declared duly elected.

2A. This election was questioned by the appellant in the election petition to which reference has already been made and a number of pleas were taken in support thereof. The Election Tribunal framed a number of issues and both sides adduced evidence on those issues, the appellant examining as many as 17 witnesses including himself and the respondent an equal number. Before the Election Tribunal, during the recording of the evidence, the appellant prayed for the scrutiny of the rejected ballot papers and these were called for by the Tribunal. But apparently the matter was not seriously pursued and pressed and the Tribunal rejected the appellant''s prayer for the scrutiny of the rejected ballot papers by its order dated 19th November 1962. As seen from the judgment of the Election Tribunal, although evidence had been adduced on all the issues, arguments were more or less confined to the issue �whether in the election in question there was appeal to the religious sentiments of the people with the consent of the respondent?" The Tribunal also recorded that the petitioner before it, namely the appellant, did not press the other issues during the argument.

On a detailed consideration of the whole matter and concentrating itself on the issue that was pressed by the petitioner before it, the Tribunal came to the conclusion that there was no substance in the objection taken, that the corrupt practice alleged had not been established, that it was not established that the result of the election was materially affected by anything that was done by or on behalf of the respondent, and accordingly came to the conclusion that there was no satisfactory proof that the respondent and his workers had appealed to the religious sentiments of the voters and that it was also not established that the distribution of the booklets Exts. 1 and 2, the English translation of which has been respectively appended as Annexure ''A'' and ''B'' in this appeal, was made either by the candidate or by his agent or by any other person with his consent. So holding the Tribunal dismissed the appellant''s election petition with costs.

When this appeal came up for hearing before us, the learned Counsel for the appellant confined his arguments to the plea of the appellant relating to corrupt practices said to have been adopted by the respondent during the election only on the ground that the candidate or his agent or other persons with his consent appealed to the electorate on the ground of religion, in order to further the prospects of his election or for prejudicially affecting the election of the appellant. In other words, the plea of the appellant was based on the ground contained in S. 123(3) of the Representation of the People Act, 1950, hereinafter referred to as the Act. All the other pleas, like bribery and undue influence etc., on which the findings of the Tribunal were against the appellant, were not pressed. No ground was also taken before us that the refusal to re-examine the rejected ballot papers was wrong and that we should interfere in regard to the same. So that the entire controversy between the parties in this appeal was confined to the questions whether the alleged corrupt practice of appealing to religion and religious sentiments of the electorate has been established in this case, and, if so, whether the same has materially affected the result of the election.

In this connection it would be useful to refer to the relevant provisions of the Act. Section 100 of the Act sets out the grounds for declaring an election to be void. The relevant portion of the section may be extracted.

Grounds for declaring election to'' be void.�

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

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

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(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--

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(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or

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the Tribunal shall declare the election of the returned candidate to be void.

(2) If in the opinion of the Tribunal, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice * * * but the Tribunal is satisfied--

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

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

(d) that in all other respects the election was free front any corrupt practice on the part of the candidate or any of his agents,

than the Tribunal may decide that the election of the returned candidate is not void.

Section 123 of the Act deals with corrupt practices and the relevant portion of the said section is extracted below :

Corrupt practices.--The following shall be deemed to be corrupt practices for the purposes of this Act:--

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

(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

The learned Counsel for the appellant sought to case his attack on the plea of corrupt practices based on two grounds: (1) printing, publishing and distribution of pamphlets, Exts. 1 and 2 and (2) oral evidence relating to the speeches that were delivered on. behalf of the respondent appearing to religion and religious sentiments.

As regards the first ground relating to the pamphlets, it has to be noticed that the appellant himself admitted that the pamphlets in question were printed and published on 1-9-1961, long before the notification calling for nominations for the election in question was issued. The Tribunal on a careful examination of the contents of Exts. 1 and 2 has arrived at the conclusion that the pamphlets cannot be said to contain any appeal to religious sentiments. We have been carefully taken through the relevant extracts of the transactions from these pamphlets and we are not satisfied that they contain any appeal based on the religion of the successful candidate or any appeal not to vote for the appellant on grounds of his religion, The portion objected to may be extracted:

We do not want to lose "Daiko" and "Daia", the present Kachari system of worshipping, which is our form of religion. But Communism will directly affect these systems. You the people should therefore decide now whether you choose to become Congress or Communists. Do not forget the fact that non-acceptance of Congress principles will mean acceptance of Communism....

In this connection, it is not disputed that the appellant was not a communist and that he did not stand on behalf of the Communist Party, and, therefore, the above quoted extract could not in any way affect the appellant; nor does it make reference to the religion of the appellant. Similarly we find no indication of any reference to the, religion of the respondent either. We find, therefore, that so far as Annexure A is concerned, no abjection can be taken on the ground that it contained any appeal to religion or religious sentiments either that of the appellant or that of the respondent, or of the electorate.

As regards Annexure ''B'' objection is taken to the following passage :

if we accept Hill State the Kacharis here would have no connection whatsoever With other Kachari brethren of Assam outside Hill State and the Kachari''s "Daiko and Daia", the present system of worshipping Cod will be mixed up with others and would be totally extinguished,

Obviously the above extract seems to contain an appeal not to accept a separate Hill State and does, not even to any remote extent make any reference to the election in question.

On a careful consideration of these extracts we are satisfied that the Election Tribunal was correct in holding that they contained no appeal to religion or religious sentiments apart from the circumstance that these pamphlets were published long'' before the election that is question in this case anal obviously could not relate to it or be making reference to it.

In this connection reliance is sought to be placed on the case of the The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., . But that case is not a case arising from the holding of an election, and certain general observations based on the scope of the constitutional provisions, contained in Arts, 25 and 26 are of no assistance to us in deciding this case Mr. Lahiri, the learned counsel for the appellant, placed particular reliance on the case of Shubnath Deogram Vs. Ram Narain Prasad and Others, . In that case, a leaflet addressed to the electorate mainly consisting of adivasis issued by the candidate''s party consisting of adivasis in the name of a "cock", which was the party symbol in the election, and which amongst the adivasis formed a very important integral part of religious ceremonies, invoked the wrath of the deities on the electorate in ease they forgot the cock, i.e., forgot to vote for the party of which it was the symbol. It was held by the majority that the leaflet was an appeal on the grounds of religion as the substance of it was that it would be an irreligious act not to vote for the party.

A careful examination of the decision discloses that the whole emphasis in that case was on the religious symbol of the main body of the electorate to which an appeal had been made to support the candidate in question, he himself having adopted that religious symbol as his election symbol. That was a clear case of an appeal to the religious sentiments of the electorate based mainly on religious belief. Obviously, this case is not applicable to the case before us.

As regards the second ground,, namely that objectionable speeches were delivered during the election campaign on behalf of the respondent containing appeals based on religion, the Election Tribunal has come to the conclusion that the oral evidence on behalf of the appellant on the point was not at all convincing and could not be relied on. We have been taken carefully through the evidence of the witnesses and pointed reference had been made to the relevant portions of the evidence of the witnesses who made reference to the speeches. On a careful consideration of the evidence adduced we are not satisfied that adequate proof is furnished by the evidence, firstly that there was an appeal based on religion or religious sentiments of either of the candidates or even of the electorate, and, secondly, that even if any such speech was made by any one, they were made with the consent of the respondent.

Under law it is only when the candidate himself or his agent, as defined in the Act, or any other person with the consent of the candidate or his election agent, makes the objectionable speech that the blame of having adopted the current practice in question could be attributed to the candidate and not otherwise. The reason is obvious. Ordinarily a person is responsible for his own acts or for the acts of his authorised agent or for any act done with his connivance or consent. If that vinculum is absent then the candidate cannot be held responsible for whatever is done by all persons in the world with whom he has no intimate connection or whose activities he cannot control or encourage. In the instant ease, we entirely agree with the Election Tribunal that the evidence adduced by the appellant does not establish that any prejudicial speech, which comes within the category of corrupt practices, has in fact been made and that the speeches that had been shown to have been made were made with the consent of the candidate, or of his election agent.

It is contended by the appellant that the expression "agent employed in the Act is very wide and that it would cover every person belonging to the party of the respondent or who is a worker for that party. It would be useful to refer to the definition (sic) in the Explanation to Section 123(sic) of the Act, which is as follows:

Explanation.--(1) In this section the expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate,

Reliance is placed on Halsbury''s Laws of England (Third Edition) Volume 14 at page 171 that "a canvasser is a person who solicits and persuades individual voters, though not necessarily one by one separately, to vote for a candidate" and that "general canvassing is strong evidence of agency, and evidence which requires a very strong case to rebut it if it can be rebutted." From this it is contended that every canvasser must be regarded as an agent of the candidate. I am afraid we are not prepared to go to this length. Even the above extracted passage, merely states that it is only a piece of strong evidence of agency. But in the very paragraph it is pointed out that voluntary canvasser who canvasses without authority is not an agent. So that it must be established before any inference or presumption is drawn. in the matter that a person who is doing the work of canvassing for a candidate is not doing so voluntarily hot he is doing it under the authority of the candidate. On a consideration of the evidence in this case wee are not satisfied that it is established that any of the persons who are said to have delivered speeches, in support of the Congress Party generally or in support of the respondent had not been doing it voluntarily or that they had been authorised by the respondent to do the canvassing on his behalf.

In this connection the following passage occurring in Parker''s Election Agent and Returning Officer. Sixth Edition, at page 317 may be usefully referred to:

A mere volunteer canvasser, canvassing without any authority from the candidate or of any of his agents, he is not an agent; nor yet a mere supporter of the candidate who asks voters for their votes and makes speeches in the candidate''s favour.

In this connection Dr. Medhi, the learned Counsel for the respondent, contends that having regard to the language of section 123(3) which refers to "his agent" the word "his" having been advisedly introduced by way of an amendment by Act 40 of 1001 the scope of the expression �agent" must be confined to the persons who are the candidate''s agents or who make the appeal in question with the consent of the candidate.

On a careful consideration of the relevant provision, we are satisfied that the following should be established before a charge of corrupt practice of the kind relied on in this case could be said to have been proved : (l) that the appeal complained against was based on the ground of religion, race etc. as set out in sub-section (3) of section 123, and (2) that the appeal was made by--(1) the candidate himself, (ii) his agent, (iii) any other person with the consent of the candidate or (iv) his election agent. We are not satisfied that any of these conditions have been established in this case.

Reliance is placed on a decision of this Court in the case of Nani Gopal Swami v. Abdul Hamid, AIR 1959 Assam 200. This decision far from supporting the respondent appellant, while laying down the correct law supports the respondent, inasmuch as it was held by the learned Judges in that case that it must be proved that the corrupt practice was done with the consent of the candidate. We agree with that statement of the law.

Although it is open to us sitting in First Appeal to examine in detail the evidence and the findings of the Election Tribunal in the light of that evidence which we have done, we certainly would not interfere with the findings of the Tribunal unless we are satisfied on such examination, either that the findings are manifestly erroneous or that they were not justified on a correct assessment of the evidence, but merely proceeded on a superficial consideration thereof. In the instant case, we are not satisfied either that the findings of the Election Tribunal call for any interference or that they were based on any erroneous or incorrect or unsatisfactory appreciation of the evidence in the case. On the other hand) we are satisfied that the findings of the Election Tribunal are fully justified on the evidence adduced in the case. This view is supported by the learned Judges of the Supreme Court as seen from the judgment in the case of Sri Baru Ram Vs. Prasanni and Others, --

High Courts should normally attach importance to the findings of fact recorded by the tribunal when the said findings rest solely on the appreciation of oral evidence.

In all election matters where corrupt practices are alleged as grounds for setting* aside the election, we are clearly of opinion that the standard of proof that is required in such cases may be equated to that in a criminal case, for, the adoption of a corrupt practice in effect amounts to the levelling in the nature of a charge against the candidate that he had resorted to wrong and illegal methods to achieve success in the election. This being the case, the corrupt practice relied on must not only be specifically averred and full and necessary particulars given in the election petition but proof must be forthcoming establishing that the corrupt practice had in fact been resorted to and adopted beyond reasonable doubt. Such strict and rigid proof is essential in matters of this description as otherwise allegations may be carelessly and recklessly made hoping that some proof, whether it established beyond doubt the corrupt practice or not, would be regarded as sufficient by Courts to interfere with the elections. That such standard of proof is called for in matters of this kind is also indicated by the circumstance that elaborate procedural requirements are enjoined upon in the holding of elections, and unless satisfactory proof is forthcoming that acts justifying the declaration of the election as void have been proved to have been committed Counts of law should not interfere with the election which represents the vote of the majority.

Applying these standards we hold that the corrupt practice relied on by the appellant has not been established and that the election petition, therefore has been rightly dismissed by the Election Tribunal We accordingly confirm the decision of the Election Tribunal and dismiss this appeal with costs, which is assessed at Rs. 500/-.