# V.M.Singh S/O Mander Singh v. Feroze Varun Gandhi

- **Citation:** (2011) 3 ILRA 1131
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-14
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/v-m-singh-s-o-mander-singh-v-feroze-varun-gandhi-42055
- **Pages:** 44

## Headnote

Representation of People Act-Section 83
(I)-allegation
of
corrupt
practices
against
returning
candidate
without
supplying
any
material-Pre-election
speech-can not be said corrupt practiceswithout giving the particulars of date
time and channel by which such speech
was telecast-in absence of compliance
mandatory provisions-election Petition
Liable to be rejected.

Held: Paras 16,28,35,63,80

When pre-nomination speeches do not
constitute a cause of action or corrupt
practice
and
are
not
relevant
to
challenge
election
of
the
returned
candidate, I am unable to understand as
to how such speeches would be relevant
to corroborate the post nomination
speeches. In my opinion the submission
of the petitioner's counsel is devoid of
merit.

Therefore, I am of the view that the prenomination speeches of a candidate have
no relevance to constitute a corrupt
practice within the meaning of section
100 and 123 of the Act. More so, they do
not even disclose a cause of action to
maintain an election petition against the
returned
candidate.
Point
no.1
is
accordingly disposed of.

Therefore, I am of the view that the
election petition is silent with regard to
the material fact that the telecasts/
publications of pre and post nomination
speeches of the respondent by the TV
channels and other media during the
post nomination period were made with
the implied or express consent of the
respondent.

The last submission on behalf of the
respondent was that the petitioner has
not supplied true copies of certain
documents, therefore, he has not made
compliance of section 81(3) of the Act
and as such the election petition is liable
to be dismissed under section 86 of the
Act. Learned counsel for the respondent
submitted
that
the
petitioner
has
pleaded
in
the
election
petition
regarding broadcast of post nomination
speeches of the respondent and the
tapes made by various channels. The
contents of alleged speeches, tapes and
broadcast have not been quoted in the
petition nor they have been made
integral part of the election petition. It
was further submitted that the CDs filed
by the petitioner relate to the pre
nomination
speeches.
It
was
also
submitted that in para 40 of the election
petition, the petitioner has relied on a
report of Forensic Science Laboratry
(inshort 'FSL') to the effect that voice in
the CDs was of the respondent. This
report is very material to link the
respondent with the CDs. The petitioner
has not furnished any copy of the report
of FSL to the respondent. The learned
counsel
for
the
respondent
further
submitted that in para 45 of the election
petition the petitioner has relied on
certain video clippings to show that the
1132 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
respondent was not in Pilibhit when his
two affidavits were sworn in before the
Notary Public at Pilibhit. The said video
clippings are the basis of allegations
made in paragraphs 42 and 45 of the
election petition but no video clippings
have been provided to the respondent.
In paragraph 19 of the petition, the
petitioner has referred to two complaints
and other references made by the
respondent. In paragraph 21 of the
petition, the petitioner has relied on the
report of L.I.U. And the CD sent by the
District Election Officer to the Election
Commission. In paragraph 23 of the
petition, the petitioner has referred to a
more comprehensive CD having more
damaging inputs but copies of none of
the documents referred to in paras 19,
21 and 23 have been furnished to the
respondent. These documents, according
to the petitioner, contain material facts,
therefore,
due
to
non-furnishing
of
copies of these documents, the petition
is liable to be dismissed. In support of
his submissions, Mr. K.N. Tripathi relied
on following cases:

In view of the finding on the point no. 5,
the petitioner has not furnished copies of
the documents referred to in paras 19,
21, 23, 40 and 45 of the election petition
to the respondent as required b

## Text

_Characters 0–39,978 of 146,512. This is a partial read: ask again with offset=39978 for what follows._

3 All] V.M.Singh S/O Mander Singh V. Feroze Varun Gandhi
1131
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2011

BEFORE
THE HON'BLE SHRI KANT TRIPATHI,J.

Election Petition No. - 9 of 2009

V.M.Singh S/O Mander Singh ...Petitioner
Versus
Feroze Varun Gandhi
 ...Respondents

Counsel for the Petitioner:
Sri V.M. Singh(Petitioner in Person)
Dr. Archana Pandey
Sri M.N. Krishnamani
Sri R.K. Pandey
Sri Sri Rajeev Kumar Singh
Sri Ravi Shankar Prasad
Sri U.N. Sharma

Counsel for the Respondents:
Sri K.N. Tripathi
Sri K.R. Singh

Representation of People Act-Section 83
(I)-allegation
of
corrupt
practices
against
returning
candidate
without
supplying
any
material-Pre-election
speech-can not be said corrupt practiceswithout giving the particulars of date
time and channel by which such speech
was telecast-in absence of compliance
mandatory provisions-election Petition
Liable to be rejected.

Held: Paras 16,28,35,63,80

When pre-nomination speeches do not
constitute a cause of action or corrupt
practice
and
are
not
relevant
to
challenge
election
of
the
returned
candidate, I am unable to understand as
to how such speeches would be relevant
to corroborate the post nomination
speeches. In my opinion the submission
of the petitioner's counsel is devoid of
merit.

Therefore, I am of the view that the prenomination speeches of a candidate have
no relevance to constitute a corrupt
practice within the meaning of section
100 and 123 of the Act. More so, they do
not even disclose a cause of action to
maintain an election petition against the
returned
candidate.
Point
no.1
is
accordingly disposed of.

Therefore, I am of the view that the
election petition is silent with regard to
the material fact that the telecasts/
publications of pre and post nomination
speeches of the respondent by the TV
channels and other media during the
post nomination period were made with
the implied or express consent of the
respondent.

The last submission on behalf of the
respondent was that the petitioner has
not supplied true copies of certain
documents, therefore, he has not made
compliance of section 81(3) of the Act
and as such the election petition is liable
to be dismissed under section 86 of the
Act. Learned counsel for the respondent
submitted
that
the
petitioner
has
pleaded
in
the
election
petition
regarding broadcast of post nomination
speeches of the respondent and the
tapes made by various channels. The
contents of alleged speeches, tapes and
broadcast have not been quoted in the
petition nor they have been made
integral part of the election petition. It
was further submitted that the CDs filed
by the petitioner relate to the pre
nomination
speeches.
It
was
also
submitted that in para 40 of the election
petition, the petitioner has relied on a
report of Forensic Science Laboratry
(inshort 'FSL') to the effect that voice in
the CDs was of the respondent. This
report is very material to link the
respondent with the CDs. The petitioner
has not furnished any copy of the report
of FSL to the respondent. The learned
counsel
for
the
respondent
further
submitted that in para 45 of the election
petition the petitioner has relied on
certain video clippings to show that the
1132 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
respondent was not in Pilibhit when his
two affidavits were sworn in before the
Notary Public at Pilibhit. The said video
clippings are the basis of allegations
made in paragraphs 42 and 45 of the
election petition but no video clippings
have been provided to the respondent.
In paragraph 19 of the petition, the
petitioner has referred to two complaints
and other references made by the
respondent. In paragraph 21 of the
petition, the petitioner has relied on the
report of L.I.U. And the CD sent by the
District Election Officer to the Election
Commission. In paragraph 23 of the
petition, the petitioner has referred to a
more comprehensive CD having more
damaging inputs but copies of none of
the documents referred to in paras 19,
21 and 23 have been furnished to the
respondent. These documents, according
to the petitioner, contain material facts,
therefore,
due
to
non-furnishing
of
copies of these documents, the petition
is liable to be dismissed. In support of
his submissions, Mr. K.N. Tripathi relied
on following cases:

In view of the finding on the point no. 5,
the petitioner has not furnished copies of
the documents referred to in paras 19,
21, 23, 40 and 45 of the election petition
to the respondent as required by section
81
(3)
of
the
Act,
therefore,
the
petitioner has not made compliance of
the mandatory provisions of section
81(3) of the Act. As such the election
petition is liable to be dismissed only on
this ground under section 86(1) of the
Act.
Case law discussed:
(1994) Supp. (2) SCC 446; (1994) 2 SCC 392;
(1996)1 SCC 378; (1996) 1 SCC 399; 1975
Supp SCC 1; AIR 1975 SC 2299; (2006) 13
SCC 795; (2008) 9 SCC 284; (1996) 1 SCC
378; AIR 1984 SC 309; 1974 (3) SCC 425; AIR
1986 SC 1253; AIR 1987 All 319; AIR 1972 SC
515; AIR 1984 SC 621; (1999) 2 SCC 217;
(2007) 3 SCC 617; AIR 1995 SC 2284; (1994)
Supp. (2) SCC 446; AIR 1976 SC 744; 1985
AWC 515; (1983) 3 Supreme Court Cases 487;
(1996) 1 SCC 399; AIR 2000 Patna 262; AIR
1960 SC 368; (1996) 1 SCC 169; AIR 1990 SC
924; AIR 1986 SC 1253; AIR 1987 All 319; AIR
1982 SC 983; AIR 1954 SC 210 Para 7; AIR
1995 SC 2284.

(Delivered by Hon'ble Shri Kant Tripathi,J. )

1. Heard Mr. M.N. Krishnamani,
learned senior counsel assisted by Mr.
Raghvendra Kumar Pandey for the
petitioner and Mr. Keshari Nath Tripathi,
learned Senior Counsel assisted by Mr.
K.R. Singh for the Objector respondent.

2. The election petitioner Mr. V.M.
Singh has filed the instant election
petition to challenge the election of the
respondent Mr. Feroze Varun Gandhi
(the returned candidate) as a Member of
the House of the People from 26- Pilibhit
Constituency.

3. It is not in dispute that the
respondent Mr. Feroze Varun Gandhi is
the returned candidate belonging to
Bhartiya Janata Party and the petitioner
Mr. V.M. Singh is the nearest defeated
candidate
belonging
to
the
Indian
National Congress. The notification for
the election was issued on 2.3.2009. The
respondent filed his nomination on
22.4.2009.
The
date
of
poll
was
13.5.2009. The respondent's election has
been challenged with the allegations that
he made speeches during the election
campaign in different meetings and
appealed for vote in the name of religion
by
creating
animosity
and
hatred
between Hindu and Muslim community.
Speeches so made by the respondent can
be divided into two categories. The first
category of speeches dated 22.2.2009,
6.3.2009, 7.3.2009 and 8.3.2009 relate to
the
pre-nomination
period.
Postnomination
speeches
made
by
the
respondent have been referred to in para
30 of the election petition. In para 29, 30
3 All] V.M.Singh S/O Mander Singh V. Feroze Varun Gandhi
1133
and 38 of the election petition, it has
been pleaded that hatred speeches made
prior to the nomination were integral part
of the general election and were telecast
repeatedly by T.V. Channels from
17.3.2009 till the finalisation of the
election on 16.5.2009.

4.

The
second
ground
for
challenging the respondent's election
petition is that his nomination was
improperly accepted by the returning
officer. It is alleged that the respondent's
affidavit in form 26 and his affidavit
regarding his assets were not signed nor
sworn in by him before the Notary Public
on 22.4.2009 at 12.10 PM and 12.20 PM
at Pilibhit, because at that time, he had
been addressing a public meeting in
district Bareilly. The relevant facts
relating to the affidavits have been
referred to in paras 6K and 41 to 51 of
the election petition and copies thereof
have been filed as Schedule 20 to the
election petition.

5. The respondent has moved three
interlocutory applications, challenging
the
maintainability
of
the election
petition.
The
first
interlocutory
application has been moved under
section 86 (1) of the Representation of
People Act, 1951 (hereinafter referred to
as 'the Act') mainly on the ground that he
has not been furnished the copies of the
documents referred to in paragraphs 19,
21, 23, 40 and 45 of the election petition.
The said documents contain material
facts with regard to the allegations of
corrupt
practice,
therefore,
it
was
obligatory in view of section 81(3) of the
Act, on the part of the petitioner to
supply true copies of the documents to
the respondent. Since the petitioner has
not supplied the documents, therefore,
the election petition is liable to be
dismissed under section 86 (1) of the
Act.

6.

The
second
interlocutory
application has been moved under Order
VI Rule 16 of the Civil Procedure Code
(hereinafter referred to as 'the Code')
read with section 86 (1) of the Act,
mainly on the ground that the allegations
made in paragraphs 6 to 40, 54 and 57 of
the election petition do not contain
material facts. The averments made in
the election petition are frivolous and
irrelevant in view of the reasons that the
facts stated in the petition relate to the
incidents/events prior to the filing of the
nomination by the respondent, therefore,
the allegations made in the election
petition are neither relevant nor can be
considered as material facts to constitute
the corrupt practice within the meaning
of section 100 and 123 of the Act.
Paragraphs 6K and 41 and 51 of the
election petition do not contain material
facts relating to improper acceptance of
respondent's
nomination.
As
such
paragraphs 6 to 51, 54 and 57 of the
election petition are liable to be struck
off under Order VI Rule 16 of the Code.

7.

The
third
interlocutory
application has been moved by the
respondent under Order VII Rule 11 of
the Code, mainly on the ground that the
election petition does not disclose any
cause of action, more so, the aforesaid
paragraphs as also grounds A to J relate
to the pre-nomination period when the
deponent had not become a candidate
within the meaning of section 100 and
123 of the Act. The allegations made in
ground 'K' do not amount to any cause of
action under section 100 (d) (1) of the
Act. More so, the pleadings contained in
1134 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the election petition are frivolous,
unnecessary and irrelevant. Therefore the
petition is liable to be rejected under
Order VII Rule 11 of the Code.

8. The petitioner has filed counter
affidavits
against
the
aforesaid
interlocutory applications. With regard to
the
interlocutory
application
moved
under section 86 (1) of the Act, the
petitioner has set up the case that the
documents referred to in paragraphs 19,
21, 23, 40 and 45 of the election petition
are not in his possession and therefore,
he was not in a position to file the same
with the election petition. He has
annexed a list of such documents
alongwith the election petition and has
applied for summoning them by moving
an application, therefore, the objection
under section 86(1) of the Act has no
merit and is liable to be dismissed.

9. With regard to the interlocutory
application under Order VI Rule 16 of
the Code, the petitioner has filed a detail
counter affidavit stating that no doubt
some of the facts pertain to the incidents/
events prior to the filing of the
nomination by the respondent but the
speeches and corrupt practices continued
even after the nomination, therefore, they
are relevant and can not be struck down
at this initial stage. The petitioner further
set up the case that the election of the
respondent has been challenged also on
the ground that the affidavits filed by
him in support of the nomination were
not sworn in before the Notary Public at
the time mentioned in the affidavits in
view of the fact that the respondent was
busy in addressing an election meeting at
that time and there was a telecast of that
news
on
television,
therefore,
the
allegations made in the election petition
can not be said to be altogether irrelevant
and frivolous. As such the application
under Order VI Rule 16 of the Code is
liable to be dismissed.

10. Keeping in view the facts and
circumstances of the case and the
submissions of the learned counsel for
the parties, the following points arise for
determination:

(1) Whether the pre-nomination
speeches of the respondent neither
constitute a corrupt practice nor disclose
a cause of action and are liable to be
struck
off
being
unnecessary
and
irrelevant ?

(2) Whether the election petition is
silent with regard to the material facts
that the telecast of pre-nomination
speeches by the Media was made with
the consent, express or implied, of the
respondent ?

(3) Whether the election petition
relating to the post-nomination speeches
of the respondent does not disclose
material
facts
and
is
vague
and
ambiguous and does not constitute a
cause of action or a corrupt practice ?

(4) Whether the election petition
does not contain, material facts with
regard
to
affidavits
filed
by
the
respondent in support of his nomination
papers except two affidavits (Schedule
20) filed with one nomination paper only
?

(5) Whether non supply of copies of
the documents or things referred to in
paragraphs 19, 21, 23, 40 and 45 of the
election
petition
amounts
to
non
compliance of section 81(3) of the Act ?
3 All] V.M.Singh S/O Mander Singh V. Feroze Varun Gandhi
1135

(6) Whether the Election Petition is
liable to be dismissed on the grounds
stated in the interlocutory applications
moved by the respondent ?

POINT NO. (1)

11. Mr. Keshari Nath Tripathi,
learned senior counsel submitted that the
speeches made by the respondent prior to
his filing the nomination can not be taken
as a relevant material to constitute a
corrupt practice nor can be taken as
relevant facts to constitute a valid cause
of action to maintain the election
petition. Mr. Tripathi further submitted
that only post-nomination speeches are
relevant for constituting the corrupt
practice. In support of his submissions,
Mr. Tripathi placed reliance on the
following cases:

(i) Subhash Desai vs. Sharad J.
Rao (1994) Supp. (2) SCC 446;

(ii) Mohan Rawale vs. Damodar,
(1994) 2 SCC 392;

(iii) Chandrakanta Goyal vs. Sohan
Singh, (1996) 1 SCC 378; and

(iv).Ramakant Mayekar vs. Celine
D'Silva, (1996) 1SCC 399.

12. In the case of Subhash Desai
(supra),
the
Apex
Court,
while
considering the question of relevancy of
pre-nomination speeches, held that the
pre-nomination speeches are not relevant
for the purposes of constituting a corrupt
practice. The Apex Court further opined
that a person becomes candidate at the
election only on filing a nomination
paper because section 79 (b) of the Act
defines the term 'candidate' to mean a
person who has been or claims to have
been duly nominated as a candidate at
any election. The Apex Court while
propounding this principle, relied on its
earlier decision in the case of Indira
Nehru Gandhi vs. Raj Narain, 1975
Supp SCC 1, and held in para 18 as
follows:

"18. On behalf of the appellant, it
was then pointed out that in election
petition,
while
alleging
corrupt
practices, reference has been made in
respect of the speeches and publications,
of period prior to 31-1-1990, which was
the date when nomination papers were
filed. The publications and speeches
alleged to have been made prior to 31-11990 have to be ignored because the
framers of the Act, required the High
Court to judge the conduct of the
candidate, his agent or persons with the
consent of the candidate or his election
agent, only after a person becomes a
candidate for the particular election. A
person becomes a candidate for the
election in question only after filing the
nomination paper. In this connection,
reference may be made to Section 79(b)
of the Act which defines 'candidate' to
mean a person, who has been or claims
to have been duly nominated as a
candidate at any election. Section 34 of
the Act says that a candidate shall not be
deemed to be duly nominated for election
from a constituency unless he deposits or
causes to be deposited the amounts
prescribed in the said section. When a
person
becomes
a
candidate,
was
examined by this Court in the wellknown case of Indira Nehru Gandhi v.
Raj Narain (1975 Supp SCC 1) and it
was held:
1136 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

"The 1951 Act uses the expression
"candidate"
in
relation
to
several
offences for the purpose of affixing
liability with reference to a person being
a candidate. If no time be fixed with
regard to a person being a candidate it
can be said that from the moment a
person is elected he can be said to hold
himself out as a candidate for the next
election."

Recently, this Court in the case of
Mohan Rawale v. Damodar Tatyabal has
said:

"We hold that all the averments in
paragraphs 1 to 20 of the memorandum
of election petition insofar as they refer
to a period prior to 23-4-1991 cannot
amount
to
allegations
of
corrupt
practice."

This cut-off date 23-4-1991 was
fixed with reference to the date when
nomination papers were filed by the
appellant concerned, because since that
date the appellant will be deemed to have
legally
acquired
the
status
of
a
candidate.
According
to
us,
any
allegation of corrupt practice against the
appellant, made by the respondent in
respect of the period prior to the filing of
nomination by the appellant on 31-11990, cannot be taken into consideration
for judging the legality or validity of his
election."

13. The aforesaid principles have
been reiterated in the case of Mohan
Rawale (supra). The Supreme Court has
made the following observations in para
6 and 8 of the judgment:

" 6. This, we are afraid, is not the
correct perception of the matter. The
view fails to take note of and give effect
to the substitution of the definition of the
expression "candidate" in Section 79(b).
All sub-sections of Section 123 of the Act
refer to the acts of a 'candidate' or his
election agent or any other person with
the consent of the candidate or his
election agent. The substituted definition
completely excludes the acts by a
candidate up to the date he is nominated
as a candidate. Shri Sanghi, therefore,
asks us to take this position to its logical
conclusions
and
strike
out
these
allegations in the election petition.

8. We hold that all the averments in
paragraphs I to 20 of the memorandum
of election petition insofar as they refer
to a period prior to April 23, 1991
cannot amount to allegations of corrupt
practice. But on the question whether
they are relevant and admissible for
other purposes for the reasons submitted
by Shri Nariman we abstain from
expressing any opinion. This aspect did
not engage the attention of the High
Court and was not considered by it. It is
for the High Court to consider them at
the appropriate time. We, therefore,
declare that the allegations in paras I to
20 relating to the period anterior to the
commencement
of
the
candidature
cannot be relied upon to establish
corrupt practice proprio vigore".

14. In the case of Chandrakanta
Goyal (supra), the Apex Court while
considering
the
relevancy
of
prenomination speeches followed its earlier
verdict rendered in the case of Subhash
Desai (supra) and opined that prenomination speeches made by any
candidate can not form basis of any
corrupt practice. A person becomes a
candidate at the election on filing his
3 All] V.M.Singh S/O Mander Singh V. Feroze Varun Gandhi
1137
nomination and not before that. The
observations of the Apex Court made in
para 3 of the judgment are being
reproduced as follows:

"3. So far as the speeches of
29.1.1990 are concerned,there can be no
doubt that the same have no relevance in
the present context inasmuch as they
were acts prior to the date on which the
appellant became a candidate at the
election. This being so, any speech made
prior to the date on which she became a
candidate at the election cannot form the
basis of a corrupt practice by any
candidate at that election since any act
prior to the date of candidature cannot
be attributed to her as a candidate at the
election. For this reason, the learned
counsel for the respondent rightly made
no attempt to dispute this position. {See -
Subhash Desai vs. Sharad J. Rao and
Others : 1994 Supp.(2) SCC 446.}

15. In the case of Ramakant
Mayekar (supra), the Apex Court again
held that the pre-nomination speeches are
irrelevant to form the basis of any
corrupt practice and opined that relevant
date is the date of nomination wherefrom
the
speeches
of
a
candidate
are
considered relevant. While upholding
this principle the Apex Court held in para
9 as follows:

"9. As for the speeches alleged to
have been made on 29.1.1990, it may be
stated at the outset that they have to be
excluded from consideration since they
cannot form the basis of any corrupt
practice at the election, inasmuch as they
relate to a period prior to the date on
which Ramakant Mayekar became a
candidate at the election as defined in
Section 79(b) of the R.P. Act. This is the
settled position in law. [See Subhash
Desai vs. Sharad J. Rao and Others,
1994 Supp. (2) SCC 446; Indira Nehru
Gandhi vs. Raj Narain, 1975 Supp. SCC
1; Mohan Rawale vs. Damodar Tatyaba,
1994 (2)SCC 392]."

16. Mr. M.N. Krishnamani, learned
senior counsel for the petitioner on the
other hand submitted that if it is held that
pre
nomination
speeches
of
the
respondent do not constitute corrupt
practice, even then, such speeches, being
hate speeches, could at least be relevant
to corroborate the post nomination
speeches.
Mr.
Krishnamani
placed
reliance on paras 8 and 9 (Paras 7 and 8
of S.C.C.) of the judgment of the Apex
Court rendered in the case of Mohan
Rawale (supra). In para 8 (Para 7 of
S.C.C.) of the judgment, submissions of
Mr. R.F. Nariman have been described.
Mr. Nariman had contended that even if
the allegations made in para 1 to 20 did
not, by themselves, establish corrupt
practice in law by virtue of their
commission
prior
to
the
appellant
becoming a candidate, these averments,
and allegations must be read as pans of
similar transactions pleaded in the later
and
subsequent
paragraphs
of
the
election petition. Mr. Nariman had
further argued before the Apex Court
that paragraphs 1 to 20 of the election
petition could not be relevant if they
could be sustained for the purpose of
probalising or furnishing "similar-fact"
evidence of the allegations of corrupt
practice made in the later paragraphs of
the election petition. The Apex Court did
not agree with the submissions of Mr.
Nariman and held in para 9 (Para 8 of
SCC) that all the averments made in
paragraphs 1 to 20 of the election
petition in so far as they refer to a period
1138 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
prior to 23.4.1991 could not amount to
allegations of corrupt practice. The Apex
Court
however,
abstained
from
expressing
any
opinion
regarding
relevancy of pre nomination speeches for
other purposes and left the same for
consideration by the High Court at the
appropriate time. In the case of Mohan
Rawale (supra) the Apex Court has not
expressed any opinion with regard to
submissions of Mr. R.F. Nariman and
very clearly held that pre-nomination
allegations could not be relied upon to
establish corrupt practice proprio vigore.
No doubt the Apex Court while holding
so left the question of relevancy of prenomination speeches for other purposes
to be considered by the High Court. But
the Apex Court did not express any
opinion as to under what circumstances
the pre-nomination speeches would be
relevant for other purposes. When prenomination speeches do not constitute a
cause of action or corrupt practice and
are not relevant to challenge election of
the returned candidate, I am unable to
understand as to how such speeches
would be relevant to corroborate the post
nomination speeches. In my opinion the
submission of the petitioner's counsel is
devoid of merit.

17. The second submission on
behalf of the petitioner was that the term
"candidate" has been defined in section
79 (b) of the Act, according to which
"candidate" means a person who has
been or claims to have been duly
nominated as a candidate at any election
and this definition is applicable for the
purposes of Part VI and Part VII of the
Act as this is evident from the words 'in
this part and part VII' occurring in the
beginning of definitions contained in
section 79. The definition of "candidate"
as given in section 79 (b) of the Act has
to be given wider import for the purposes
of section 123 of the Act so as to include
also the period commencing from the
date of notification issued by the election
commission
till
the
filing
of
the
nomination and can not be restricted to
the period commencing on and from the
date of nomination only. The said
definition has to be given effect keeping
in view the context in which the term
'candidate' has been used in section 123
of the Act because the expression "unless
the context otherwise requires" used in
section 79 of the Act clearly supports the
view
that
the
definition
of
term
'candidate' in section 79 (b) of the Act is
not static and can be modified suitably
according to the context in which the
term 'candidate' has been used. In
support
of
this
submission,
Mr.
Krishnamani, referred to the judgment of
the Apex Court in the case of Indira
Nehru Gandhi vs. Raj Narain &
another, AIR 1975 SC 2299 and
contended that in that case the Supreme
Court, while scrutinising the effect of the
amendment of section 123 (7) of the Act,
expressed the view that the legislature
was well within its right to determine a
point of time prior to which any action of
the candidate can not be deemed to be
corrupt practice. The Apex Court further
held that in absence of such a restriction
any
successful
candidate
would
automatically become a candidate for the
subsequent election after five years.
According to Mr. Krishnamani, the Apex
Court while making this observation,
clarified that the definition of the word
'candidate' may be departed from, if there
is something in the context to show that
the definition should not be applied. In
this connection, the learned counsel
referred to paras 218 and 219 of the
3 All] V.M.Singh S/O Mander Singh V. Feroze Varun Gandhi
1139
judgment rendered in Indira Nehru
Gandhi (supra) which are as follows:

"218.
..........Reading
the
word
"candidate" in Section 123(7) of the RP
Act in the sense in which it has been
defined as a result of the amendment
made by Act 40 of 1975. I find that the
only reasonable inference is that the
person referred to as a candidate in that
clause should be a person who has been
or claims to have been duly nominated as
a candidate at an election and not one
who is yet to be nominated.

219. Mr. Shanti Bhushan has invited
our attention to Clause (b) of Section
100(1) of the RP Act wherein it is stated
that subject to the provisions of Subsection (2) of the section if the High
Court is of the 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 a returned candidate or his election
agent, the High Court shall declare the
election of the returned candidate to be
void. "Returned candidate" has been
defined in Clause (f) of Section 79 to
mean, unless the context otherwise
requires, a candidate whose name has
been published under Section 67 as duly
elected. It is urged that as the corrupt
practice referred to in Clause (b) of
Section 100(1) of the RP Act would in the
very nature of things have to be
committed by the returned candidate
before his name was published under
Section 67 as duly elected, the words
"returned candidate" in Clause (b) of
Section 100(1) must be taken to have
been used with a view to identify the
person who subsequently became a
returned candidate. It is urged that if
while dealing with corrupt practice
committed by a candidate before he
became a returned candidate in the
context of Section 100(1)(b), it is
permissible to hold that the words
"returned candidate" are intended to
identify the person who subsequently
became a returned candidate, the same
criterion should apply when construing
the word "candidate" in Section 123 of
the RP Act. This contention, in my
opinion, is devoid of force. The definition
of the words "returned candidate" and
"candidate" given in Section 79 of the RP
Act are preceded by the words "unless
the context otherwise requires". The
connotation of the above words is that
normally it is the definition given in the
section which should be applied and
given effect to. This normal rule may,
however, be departed from if there be
something in the context to show that the
definition should not be applied. So far
as Clause (b) of Section 100(1) is
concerned, the context plainly requires
that the corrupt practice referred to in
that clause should have been committed
by the candidate before he became a
returned candidate, or by his agent or by
any other person with his consent or that
of his election agent. The compulsion
arising from the context which is there in
Clause (b) of Section 100(1) of the RP
Act is singularly absent in Section 123(7)
of the RP Act. There is nothing in the
context of the latter provision which
requires that we should not give full
effect to the new definition of the word
"candidate".

18. Mr. Krishnamani continued to
argue that the Apex Court in the case of
Indira Nehru Gandhi (supra) had inter
alia, examined the constitutional validity
of the Election Laws (Amendment) Act,
1975 and introduced the new definition
1140 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
of the word "candidate". In fact, the
Apex Court examined the validity of the
aforesaid Act in the light of the
provisions of section 123(7) of the Act
alone, which is apparently clear from
para 234 of the judgment, which reads as
follows:

"234. Reference was also made by
Mr. Shanti Bhushan to the effect of
retrospective amendment in cases which
may arise under Section 123(1) of the RP
Act. We are in the present case not
concerned with Section 123(1) of the RP
Act......... ."

19. Keeping in view section 123 (7)
of the Act, the Apex Court was of the
view that the aforesaid amendment was
constitutional as the Parliament had
powers to enact such laws. According to
Mr. Krishnamani, the ratio behind this
conclusion has been given in para 385 of
the judgment, which reads as follows:

"385. The legislature must fix some
point of time before which a person
cannot be a 'candidate' in an election,
and, a wide latitude must be given to the
legislature in fixing that point. In Union
of India v. Parameswaran Match Works,
Civil Appeals Nos. 262-273. 587-591
and 1351-1402 of 1971 and 1883-1921
of 1972, D/- 4-11-1974 - () this Court
observed:

The choice of a date as a basis for
classification cannot always be dubbed
as arbitrary even if no particular reason
is forthcoming for the choice unless it is
shown to be capricious or whimsical in
the circumstances. When it is seen that a
line or point there must be, and there is
no mathematical or logical way of fixing
it
precisely,
the
decision
of
the
legislature or its delegate must be
accepted unless we can say that it is very
wide of the reasonable mark. See
Louisville Gas Co. v. Alabama Power
Co. 240 US 30 at p. 32 per Justice
Holmes."

20. On the basis of the aforesaid
observations of the Apex Court, Mr.
Krishnamani submitted that in section
123 (7) of the Act it is difficult to
ascertain whether the listed acts would
be for the furtherance of the prospects of
the election of that candidate or for
prejudicially affecting the election of any
candidate irrespective of the fact that
they were carried out prior to a particular
point in time, therefore, the Act as well
as the verdict of the Apex Court
explicitly
reveal
that
the
date
of
nomination can serve as an effective
benchmark to determine whether the act
constitutes a corrupt practice or not. The
same is also true for section 123 (6) of
the Act among others.

21. It was next submitted by the
learned senior counsel appearing for the
petitioner that a strict interpretation of
section 79 (b) of the Act would in fact
render some of the provisions of the Act
as unenforceable and due to this reason
the Apex Court observed in para 219 of
the judgment rendered in Indira Nehru
Gandhi's case (supra) that the definition
may, however, be departed from if there
be something in the context to show that
the definition should not be applied. Mr.
Krishnamani referred to the provisions of
section 123 (3), section 123 (3A) and
section 123 (1)(A)(a) of the Act and
contended that if it is held that a person
becomes candidate mere on filing a
nomination only, the provisions of these
sections would become unenforceable.
3 All] V.M.Singh S/O Mander Singh V. Feroze Varun Gandhi
1141
According to the learned counsel, section
123 (1)(A)(a) of the Act clearly prohibits
candidates from giving bribe to a person
either to stand or not to stand as a
candidate in the election, therefore, if the
definition of the "candidate" as provided
in section 79(b) of the Act is applied, in
that eventuality, section 123 (1)(A)(a) of
the Act would become ineffective. Mr.
Krishnamani further submitted that there
is another reason which makes the
position clear that the term "candidate"
in section 79 (b) cannot apply to the
allegations arising out of section 123 (3)
and section 123 (3A) of the Act. The
whole object of these provisions is that a
candidate should not indulge in hate
speeches or communal attacks in order to
injure the sentiments of any sect or to
induce and infuse feeling of hatred in
another community in order to polarise
people
in
his
favour
by
creating
communal hatred. Therefore, a candidate
can not be held to be justified to make
hatred and communal speeches even
about one minute before filing his
nomination. The hate pre nomination
speeches by which a person has already
been done the mischief and damage
prevented by section 123 (3) and section
123 (3A) of the Act would go scot free if
the literal definition of "candidate" given
in section 79(b) of the Act is given effect
to and in that eventuality, he would be
able to gain benefits by such hate
speeches in his election prospects. It was
also submitted on behalf of the petitioner
that the object of section 123 (3) and
section 123 (3A) of the Act is also to
prevent other candidates fighting the
election from being put to grave loss and
prejudice on account of such hate
speeches. The respondent's object all
along before and after the filing of the
nomination was to consolidate Hindu
votes by targeting Muslims and Sikhs by
hurling venouoness, vituperative and
vulgar attacks on them. In such a context
the narrow definition of "candidate"
would work havoc and defeat the very
object of the aforesaid sections. In the
backdrop of these contexts, Mr. Krishna
Mani submitted that the definition of the
term "candidate" as contained in section
79(b) of the Act includes not only a
person who becomes a candidate on
filing nomination but also a person who
is an "would be candidate".

22. The learned counsel for the
petitioner further submitted that the
principles laid down in the cases of
Subhas Desai (supra), Mohan Rawale
(supra), Chandrakanta Goyal (supra)
and Ramakant Mayker (supra) have
not laid down any law and are not
binding precedents. In these cases, the
principles being relied upon by the
counsel
for
the
respondent
were
propounded only on the concession
granted by the counsels. Mr. Krishna
Mani referred to para 8 of the judgment
in Mohan Rawale's case (supra), para 3
of the Chandrakanta Goyal's case
(supra) and para 9 of the judgment in
Ramakant Mayker's case in support of
his
submissions.
In
other
words,
submissions of the counsel for the
petitioner was that in all the aforesaid
three cases the Apex Court has not laid
down any law. Whatever observations
have been made, they have been made by
way
of
concession,
therefore,
the
decisions
are
not
binding
judicial
precedents. Mr. Krishnamani proceeded
further to argue that a counsel has no
right to concede on a question of law so
as to bind his client. In any event, the
Apex Court in multiple cases, held that
any decision passed on a point that has
1142 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
been either conceded by one party or
mutually agreed to by both the parties,
can not be deemed to be a binding
precedent. In the case of Uptron India
Ltd. vs. Shammi Bhan (1998) 6 SCC
538 the Apex Court has observed in para
23 of the judgment that ".... Even
otherwise, a wrong concession on a
question of law, made by a counsel, is
not
binding
on
his
client.
Such
concession cannot constitute a just
ground for a binding precedent." This
view has been reiterated by the Apex
Court in the case of Commissioner of
Central Excise, Chennai-I vs. ITC Ltd.
(2006) 13 SCC 795 and Rajbir Singh
Dalal vs. CDL University Sirsa and
another, (2008) 9 SCC 284. It was next
submitted that the case laws cited by the
learned counsel for the respondent being
contrary to the analogy of section 123 of
the Act as well as the decision rendered
in the Indira Nehru Gandhi's case
(supra), are per incuriam.

23. Before entering into merits of
the aforesaid submissions of the learned
counsel for the parties, it seems to be just
and expedient to see as to how the
present definition of the term "candidate"
was brought on the statute book. After
the judgment of this Court in the case of
Raj Narain vs. Indira Nehru Gandhi
(rendered by Hon'ble Jagmohan Lal
Sinha,J.),
the
Parliament
made
exhaustive
amendment
in
the
Representation of People Act by The
Election Laws (Amendment) Act, 1975
(Act No. 40 of 1975), (hereinafter
referred to as 'the Amending Act') and
amended the definition of the term
"candidate" with retrospective effect.
Before
the
amendment,
the
term
"candidate" had wider import, and
according to that, a person used to be
considered as a "candidate" even prior to
his filing the nomination. The pre
amended
definition
of
the
term
"candidate" as defined in section 79 (b)
of the Act, was as follows:

"79. In this Part and in Part VII,
unless the context otherwise requires,-

(a)........

(b) a candidate means a person who
has been or claims to have been duly
nominated as a candidate at any election
and any such person shall be deemed to
have been a candidate as from the time,
with the election in prospect, he began to
hold himself out as a prospective
candidate."

24. Therefore, according to preamendment
definition,
"candidate"
means a person who has been or claims
to have been duly nominated as a
candidate at any election and any such
person was being deemed to have been a
candidate not only from the date of his
nomination but also as from the time,
with the election in prospect, he began to
hold himself out as a prospective
candidate.

25. By the amending Act, the words
and expressions "and any such person
shall be deemed to have been a candidate
as from the time, with the election in
prospect,he began to hold himself out as
a prospective candidate" were deleted
from section 79 (b) of the Act.
Consequently the following definition,
which is operative since then, was
incorporated in section 79:

"79. In this Part and in Part VII
unless the context otherwise requires,-
3 All] V.M.Singh S/O Mander Singh V. Feroze Varun Gandhi
1143

(a)........

(b) "candidate" means a person who
has been or claims to have been duly
nominated as a candidate at any
election;"

26. The validity of the Amending
Act
was
challenged
before
the
Constitution Bench of the Apex Court in
the case of Indira Nehru Gandhi vs.