S. Harcharan Singh vs S. Sajjan Singh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1984 Supreme(SC) 340

SUPREME COURT OF INDIA
S.MURTAZA FAZAL ALI, A. VARADARAJAN AND SABYASACHI MUKHARJI, JJ.
S.Harcharan Singh, Appellant
Versus
S.Sajjan Singh and others,Respondents.
Civil Appeal No.3419 (NCE) of 1981,D/-29-11-1984.
Advocates Appeared
Mr.Soli, J. Sorabji, Sr. Advocate, Mr. K. P.Bhandari, Sr. Advocate, Mr. S. C. Patel And Dr. Ruksana Swamy, Advocates With Them For Appellant; Mr. G. S. Grewal, Sr. Advocate, R. A. Gupta, Advocate With Him, For Respondents.

Advocates:
G.S.GREVAL, K.P.BHANDARI, R.A.GUPTA, RUKSANA SWAMY, S.C.PATEL, SOLI J.SORABJI

Headnote:APPEAL ON THE GROUND OF RELIGION — EVIDENCE AND PROOF - What amounts to appeal on the ground of religion — duty of the Court - Single appeal by candidate or his election agent or by any other person on the ground of religion, race, caste or community
       – in there is direct evidence of propaganda or campaign by candidate in the election in the name of the religion, the probabilities of such a campaign not being made in view of other surrounding circumstances, cannot out weigh the direct evidence if the Court is otherwise inclined to accept such direct evidence,
       – Sections 123 (2) and (3) and (3A) was enacted to eliminate from the electoral process appeals to those divisive factors which arouse irrational passions that run counter to the basic tenets of our constitution. Due respect for the religious beliefs and practices, race, creed, culture and language of other citizens is one of the basic postulates of our democratic system. The line has to be drawn by the Court between what is permissible and what is prohibited after taking into account the facts and circumstances of each case interpreted in the context in which the statements or acts complained of might have been made, as observed in the case of Harcharan Singh v. Sajjan Singh, AIR 1985 SC 236. The Court has to examine the effect of the statements made by the candidate upon the minds and feelings of the ordinary average voters of this contrary. In order to determine whether certain activities come within the mischief of Section 123(3), regard must be had to be substance of the matter rather than to the mere form of psychology. The inhibition of Section 123(3) should not be permitted to be circumvented indirectly or by circuious or subtle devices. The Court should attach importance to the effect and impact of the acts complained of and always keep in mind the paramount purpose of Section 123(3) namely to prevent religious influence from entering the electoral field. The nature and consequence of an act may not appear on its very fact but face but the same can be implied having regard to language the context, the status and position of the person issuing the statement, the appearance and known religion of the candidate, the class of persons to whom the statements or act is directed etc.

       – as held in S. Harcharan Singh v. Sajjan Singh, AIR 1985 SC 236, even a single appeal by a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste or community etc. would be corrupt practice.

Judgment

SABYASACHI MUKHARJI, J.:- The appellant and the respondents contested the election to Punjab Legislative Assembly held in May, 1980 from Muktsar Constituency Polling was held on 31st May, 1980 and the result was declared on 1st June, 1980 in which the appellant secured 29,600 votes and respondent No. 3 secured 30,003 votes. The other candidates got only nominal votes. There was thus a difference of 403 votes in favour of the respondent No. 3. Respondent No. 3 was declared elected. The election of respondent No. 3 was challenged by an election petition alleging that the respondent No. 3 had indulged in corrupt practice in the said election and as such his election was liable to be set aside and he was liable to be disqualified for corrupt practice. Corrupt practice makes the election liable to be set aside under S. 100(1)(b) of the Representation of the People Act, 1951, hereinafter called the Act which is as follows :-

"100. Grounds for declaring election to be void -

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

(a) ..............

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

2. What are deemed to be corrupt practices are indicated in S. 123 of the Act. Sub-section (3) of the said section is as follows :-

"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, or appeal to religious symbols or the use of, or appeal to, national symbols such as the notional flag or the national emblem, for the furtherance of the prospects of the election of that candidate or prejudicially affecting the election of any candidate.

Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purpose of this clause."

3. It may be mentioned that before the amendment Act, 40 of 1961, effected on 12th Sept. 1964. sub-s. (3) of S. 123 of the Act was as follows :

"The systematic appeal by a candidate or his agent or by any other person, to vote or, refrain from voting on grounds of caste, race, community or religion 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 that candidates election."

4. As a result of this amendment, inter alia, the expression "systematic" has been deleted and only "appeal" by a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community, or language continues to be corrupt practice. The statement of objects and reasons for introducing amendments in Ss. 123, 125, 139 and 141 of the Act in 1961 stated, inter alia, as follows :

"For curbing communal and separatist tendencies in the country it is proposed to widen the scope of the corrupt practice mentioned in cl. (3) of S. 123 of the 1951 Act and to provide for a new corrupt practice (See sub-ss. (3) and (3A) of S. 123) and a new electoral offence for the promotion of feelings of hatred and enmity on grounds of religion, race, caste, community or language (See new S. 125)."

5. Therefore even a single appeal by a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste or community etc. would he corrupt poctice.

6. The allegations against respondent No. 3 were that he, his election agent and other person with his consent had appealed to the voters of the constituency in the name of religion, namely Sikh religion for voting in his favour or to refrain from, voting

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1984 Supreme(SC) 340

Cases Referred (11)