# ABDUL HUSSAIN MIR v. SHAMSUL RUDA & ANR

- **Citation:** [1975] 3 S.C.R. 106
- **Court:** Supreme Court of India
- **Decided:** 1974-12-20
- **Case number:** Election Petition No. 2 of 1973
- **Bench:** A. ALAGIRISWAMl, V. R. Krishna !Yer, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abdul-hussain-mir-v-shamsul-ruda-anr-6384
- **Pages:** 22

## Headnote

Representation of the People Act {43 of 1951) Ss. 83, 123(1)(2) and (3) ··
Scope of.
The appellant is a Muslim, whose mother· was a tribal Hindu who was
converted to Islam on the eve of her marriage to a Muslim. In the efoction
to the Assam Legislative Assembly from a ronstituency which is a tribal area
of Assam wi•h a heterogeneous composition of tribesmen vaguely Hindu by
pemwion, plainsmen Hindus and nearly 80% Muslims, the appellant was
declared elected.
The respondent filed an election petition challenging the
election inter a/ia on three grounds : (I) that the appellant offered Rs. 2,000/·
to P.W. 12 a Mu1la to collect votes for him, and though P.W. 12 rt,fusctl
the offer the lllppeliant was gu.ilty of the corrupt practice under s. 123 ( 1)
of the Representation of the People Act 1951; (2) that the appellant was
guilty of corrupt practice under s. 123 (3 )
0 because he canvassed for votes on
the basis of his religion by asking for v1~tes on the ground of his bei~1g the
'°n of a tribal Hindu woman; and (3) that the appellant exercised undue
inftuence by threatening that the persons who might vote for the respondent,
ooultl be identified and would be subjected to the same treatment as peopie
of Bangladesh were by the Pakistanis. thus violating s. 123(2). The High
Court allowed the petition.
Allowing the appeal to this Court,
<Per Alagiriswami, J.)
c
(I) Regarding the first charge, P.W. 12 stated that the &ppellant offered
him money if he would work for him in the election. in the two villages in
L
which he hapixned to be the Mu.'la.
Another witness stated that the ap:pellant
told him that he had offered money to P.W. 12 for helping him :in the
electi0n campaign but that P.W. 12 rejected the offer and, requeste(1 that
witness to make over the money to P.W. 12 itnd prevail upon him to work
for the appellant. These facts do not fall under s. 123(1). Therefore:, it is
Uilllecessary to discuss whether, if money is paid or offered as consideration for
votes promised to be secured by a perscn using his influence it is bribery or
not. because, the question does not arise ou.t of the facts of this ~ase. [108Gl 09AJ
F
(Per Krishna Iyer and Sark.aria, JJ.)
(!)(a) An appraisal of the evidenee and an overall view of it m~kes it
doubtful whether the appel1ant even met P.W. 12 and therefore, the offer of
the bribe had not been established.
T123B; 126E-Fl
(b) Section 123 ( 1) requires (i) an offer or promise by the candidate etc ..
of ~atification to any person. and (ii) the object must be directly or indirectly
(;
to mdu.ce an elector to vote or not to vote at an election. The purpose of
the provision is to ensure poll puri<y and the exdu~ion of pollution by money
power. If the' payment is to indu:;; an elector
to vote,
be it
din:ct
or
vicarious1y, it is corrupt. If the money is paid as consideration
for votes
promised t? be secured by an important person of the /oca/itv using hi's sway
it is bribery even though indirectly exercised. But, if the candidate pays money
to use his good offices and canvass votes for him it would be a border line
case. In the present case, if P.W. 12 had b~en paid the money striking a
bargain for getting the votes in his ambit of influence it is electoral cormption.
H
On the other hand, if It is money received for the purpose
of
arganising
effectively the election campaign by hiring workers, going grou.nd to places
iu car, meeting people and pcr.mading them to vote for the candidate it is
A
B
c
[)
E
F'
II
A. !I. MIR v. s. HUDA (Krish11a Iyer, J.)
107
proper electioll expenses. The tou:h stone in all these
cas·~s of paymc1:l 01 ·
gratification is to finJ out whether the money is paid in reasonable mea~ure
for work to be done or services to be remlcrcd, and whether the servv.:c'
so offered amount to a bargain for getting votes or merely to Jo propa·ganda 01
hl p.:rsnade voters to vol·~ fur the candidate. The ~rucial point i·; the
nexubctwccn the. gratification and the votes. one being the consideration for the.

## Text

_Characters 0–39,999 of 68,781. This is a partial read: ask again with offset=39999 for what follows._

106
ABDUL HUSSAIN MIR
v.
SHAMSUL RUDA & ANR.
December 20, 1974
[A. ALAGIRISWAMl, V. R. KRISHNA !YER AND R. S. SARKARIA, JJ.]
Representation of the People Act {43 of 1951) Ss. 83, 123(1)(2) and (3) ··
Scope of.
The appellant is a Muslim, whose mother· was a tribal Hindu who was
converted to Islam on the eve of her marriage to a Muslim. In the efoction
to the Assam Legislative Assembly from a ronstituency which is a tribal area
of Assam wi•h a heterogeneous composition of tribesmen vaguely Hindu by
pemwion, plainsmen Hindus and nearly 80% Muslims, the appellant was
declared elected.
The respondent filed an election petition challenging the
election inter a/ia on three grounds : (I) that the appellant offered Rs. 2,000/·
to P.W. 12 a Mu1la to collect votes for him, and though P.W. 12 rt,fusctl
the offer the lllppeliant was gu.ilty of the corrupt practice under s. 123 ( 1)
of the Representation of the People Act 1951; (2) that the appellant was
guilty of corrupt practice under s. 123 (3 )
0 because he canvassed for votes on
the basis of his religion by asking for v1~tes on the ground of his bei~1g the
'°n of a tribal Hindu woman; and (3) that the appellant exercised undue
inftuence by threatening that the persons who might vote for the respondent,
ooultl be identified and would be subjected to the same treatment as peopie
of Bangladesh were by the Pakistanis. thus violating s. 123(2). The High
Court allowed the petition.
Allowing the appeal to this Court,
<Per Alagiriswami, J.)
c
(I) Regarding the first charge, P.W. 12 stated that the &ppellant offered
him money if he would work for him in the election. in the two villages in
L
which he hapixned to be the Mu.'la.
Another witness stated that the ap:pellant
told him that he had offered money to P.W. 12 for helping him :in the
electi0n campaign but that P.W. 12 rejected the offer and, requeste(1 that
witness to make over the money to P.W. 12 itnd prevail upon him to work
for the appellant. These facts do not fall under s. 123(1). Therefore:, it is
Uilllecessary to discuss whether, if money is paid or offered as consideration for
votes promised to be secured by a perscn using his influence it is bribery or
not. because, the question does not arise ou.t of the facts of this ~ase. [108Gl 09AJ
F
(Per Krishna Iyer and Sark.aria, JJ.)
(!)(a) An appraisal of the evidenee and an overall view of it m~kes it
doubtful whether the appel1ant even met P.W. 12 and therefore, the offer of
the bribe had not been established.
T123B; 126E-Fl
(b) Section 123 ( 1) requires (i) an offer or promise by the candidate etc ..
of ~atification to any person. and (ii) the object must be directly or indirectly
(;
to mdu.ce an elector to vote or not to vote at an election. The purpose of
the provision is to ensure poll puri<y and the exdu~ion of pollution by money
power. If the' payment is to indu:;; an elector
to vote,
be it
din:ct
or
vicarious1y, it is corrupt. If the money is paid as consideration
for votes
promised t? be secured by an important person of the /oca/itv using hi's sway
it is bribery even though indirectly exercised. But, if the candidate pays money
to use his good offices and canvass votes for him it would be a border line
case. In the present case, if P.W. 12 had b~en paid the money striking a
bargain for getting the votes in his ambit of influence it is electoral cormption.
H
On the other hand, if It is money received for the purpose
of
arganising
effectively the election campaign by hiring workers, going grou.nd to places
iu car, meeting people and pcr.mading them to vote for the candidate it is
A
B
c
[)
E
F'
II
A. !I. MIR v. s. HUDA (Krish11a Iyer, J.)
107
proper electioll expenses. The tou:h stone in all these
cas·~s of paymc1:l 01 ·
gratification is to finJ out whether the money is paid in reasonable mea~ure
for work to be done or services to be remlcrcd, and whether the servv.:c'
so offered amount to a bargain for getting votes or merely to Jo propa·ganda 01
hl p.:rsnade voters to vol·~ fur the candidate. The ~rucial point i·; the
nexubctwccn the. gratification and the votes. one being the consideration for the. other.
direct or indirect.
In the present case. the facts as spoken do not even 1f true.
come within the relevant clause namely s. 123( I), because the offer was made
onlv to make P.W. 12 work for the candidate 1/wt is, to pcrsa11de l'Olcc.1· t<:·
suprort the paying candidates. [124B-E, 125B·C. D-FJ
(Pt·r Alagiriswami, J.) :
(2) As far as the second charge is concerned sonic witnesses said that the
appellant canvassed for votes claiming that he WJs a Hindu and others said
that he claimed votes on the basis 1hnt his mother was a tribal woman. fo
a c:on~tituency where 80% of the vo~ers arc Muslims it is extremely unlikely
truit the app~llant would have canvassed for votes on any 'uch basb .. The
appellant being a Muslim he could not be said to have canv:1sscd for votes 011
the bas:s of his religion, he not being a Hindu. [109B-Cl
(Per Kri~hna Iyer :~nd Sarkaria, JJ.) :
( 2) (a) The appe:Jant is a Muslim and his appeal, if at all, is on the
basis that he was an inter-caste or inter-radal or inter-religiou5 product and
as such a symbol of unity or a less communal Mussalman. · An appeal by a
candi~te that he personifies Hindu-Muslim interplay docs not cross the line
iif corrupt practke.
[114G-115B]
·
( b) The section rcqttires that the vote mwt be sought by the candidate
exploiting Iris religion.· An appeal to Hindu'3 b¥ a Muslim candidate on the
ground of his religion is impossible under the present Indian conditions.
[I 15E]
(c) In the particular constituency, if one took up a Hindu posture it would
not b~ an advantage to him, and therefore, it is unlikely that the appellant
scugth votes on the ground that he is a Hindu. The ground of religious or
communal appeal doos not stand in the light of the evid·~nce in the present
c:ise and finding of the High Court is, therefore, wrong.
The High Court
had been far too easily persuaded by unsatisfactory oral evidence each of
which is of an ad
hoc
character,
uncorroborat~d by
any
testimony of
(Ompelling value and is contradicted by the party affected. The cri'erion of
proof beyond reasonable doubt was forgotten although verbal homage was
paid to it.
[119C·fl
[It is a matter for profound regret that political commun~ !ism far from
being rooted out r.; foli'ating and flourish,ing iargl!ly because
r1~rtie<ll and
politicians !'.ave not the will. professions apart, to give up the chase for power
through politicising communal awareness and religious cultural identity.]
[I 19F] ,,-
( Jly Full Court) :
(3) The election petition is vague in regard to the particulars in support
of the -averment of undue inllucnce. More than one amendment was sought
and sti'il neither the names of the per>0ns nor of the places so 'vital to induce
credence and to show fairplay have been given, in spite of the appellant urging
that the allegation was vague and bold. One cannot pick up witnesses. on
route and march them iato the witness box without running the risk of their
:1pparently consistent evid·~nc~ from being disbelieved. The charges are quasicriminal anq have ·;.;:riou> consequences and all necessary particulars have to
b~ furnished in the election petition as required by s. 83.
This being absent
and the entire ·case resting on shaky ipsi dixits .the version tendered by the
respondent could not be believed.
[109C-D; 122A'D]
(Per Krishna Tyer and Sarkaria, JJ.):
( 4) Certain bask legal guidelines cannot be lost sight of while adjudging
an election di511ute.
The verdict at the polls wears a protective mantle in a
108
SUPREME COURT REPORTS
(1975] 3 S.C.R.
·dcmucratic polity. The Court will vacate such ballot :ount return only 'n
rr~of ·beyond reasonable Joubt of corrupt practices. Charg·:s, such :is lrn1~
heen imputed here, are viewed as quasi-criminal, carrying othe.r .Pe!1alttcs .tha!1
losing a •;eat and a sirong testimony is needed to subven a Rctummp O_lltcct s
declaration. ·At the same time, findings reached by the tnal iudge, w1H
~101
be r~apjlraised and reversed in appeal unbs palpable errors ''f m1sapprec1at1on
arc writ large on them.
[l ! 1H-l !2B]
A
CIVIL APPELLATE JURISDICTION : Civil
Appeal
No.
915
of
B
J 973.
From the judgment and order dated the 30th April, 1973 of the
Gauhati High Court in Election Petition No. 2 of 1973.
.
.
R. K. Garg, S. C. Agarwal, S.S. Bhatnagar, V. !. Franqis and S. N.
Chaudhary, for the ·appellant.
c
D. N. Mukherjee, Prodyot Kumar Chakravarti and N. R. Chaudhl'y,
for respondent No. 2,
The Jud1mwnt of V. R. Krishna Iyer and R. S. Sarkaria. JJ. was
-delivered by Krishna Iyer, J. A, Alagiriswami, J. gave l! seJParate
opinion.
ALAGJRISWAMI, J. I agree with the conclusiQns of
our le,amed
brother Krishna Iyer.
But I think it necessary to say something on
my own.
D
The appeal relates to the election to the As;am Legislative Assembly from Dhing constituency. The appellant was declared elected by
a majority of 1185 votes.
The respondent filed an election petition
E
making three charges of corrupt practices against the appellant. The
'learned Judge of the Gauhati High Court held that the charges were
made out and alloweld the election p::tition.
Hence this appeal.
The first charge was the offer of a bribe to P. W. 12. Tl!e second
charge was that the appellant was guilty of a corrupt practice under
sec•ion 123(3) of canvassing for votes on the basis of his re:ligion.
F
The third charge was that he exercised undue influence by holding out
the threat that the people who voted for the respondent would be
identified and subjected to the same treatment as the people of Bangladesh by the Pakistanis.
Regarding the first charge all that is necessary to do is to rder to
the evidence of PW. 12 and 13.
P.W. 1.2 stated that the appellant
G
offered him Rs. 2000 if he worked for him in the election in the two
villages in which .he happened to be a Mulla.
P.W. 13 stated that
the appellant told him that he had offered Rs. 2000 to P.W. 12 for
helping him in the election campaiirt but that he had rejected the
offer and therefore requeste'd him (P.W. 13) to collect the money and
make it over to P.W. 12 and prevail upon him to work for him
( aPpellant). Clearly this doPs not fall under section 123 (1). I conH
sider it, therefore, unnecessary to discuss whether if money is paid
or offered ns consideration for votes ])romised to be secured by a person
A
B
c
H
A. I!. MIR I'. s. HUDA (Krishna Iyer, J.)
I 0 9
using his influence it is bribery or not. It is a good policy uot to discu~s in a judgment question which do not arise out of the facts of the
case.
As far as the sccoIIU charge is concerned, it is said that the appellant's mother was a 'Kachari', one of the tribes in Assam. But admittedly she was converted to islam before she married the appellant's
father.
Some witnesses say that the appellant canvassed for votes
claiming that he was a Hindu. Some others say that he claimed votes
on the basis that his mother was a Kachari. All that is necessary to
say about this part of the case it that apart from he fact that in a
consituency . where 80 ·per cent of the voters were· Muslims it is not
at all likely that the appellant would have canvassed the votes on any
such basis, there is no doubt that the appellant being a Muslim he
could not be said to have canvassed for votes on the basis of his reli- ·
gion. he not being a Hindu. · ·
As regards the thi1tl charge, in spite of the three amendments made
· to the election petition material particulars were not given on the basis
of which the evidence regarding this charge could have been admitted.
I agree with the conclusions of iny learned brother on the basis of
the evidence which he has discussed that the case of undue influence
is not satisfactorily establi~hed.
l agt'ee that the appeal should be allowed and the election petition ·
tlismissed with costs.
·
.
KRISHNA IYER, J. In the current Indian socio-geographi:: context,
with its delightfully and distressingly diverse, traditional and complex
humanity, we have to appreciate the three grounds of corrupt practice
levelled through this election appeal againSt the Congress candidate
who secured a lead of 1385 votes but was allegedly guilty of several
malpractices at the polls of whi~}l three have found favour with the
High Court an'd have been challenged before us.
Briefly, they arc :
(a) that the petitioner offered Rs. 2,000/- to one Jabbar
Munsni (P.W. 12) to collect votes for him which this righteous soul spurned-and therefore the prefen;ed payment did
not materialise althQugh the corrupt practice under s.123 ( 1 )
was . nevertheless comntltted; . · ·
(b) the petitioner, of the same Islamic faith as his opponent
though, canvassed ~·otes using the potency of a queer s.ort of
mulatto religious or communal appeal,· thus getting caught
within the coils of s. 123 ( 3) of the Representation of the
People Act (hereinafter called the Act, for short); and
( c) he exercised a kind of undue influence to which people
of States of our country bordering on Pakistan and a sizeable
'Muslim population may perhaps be peculiarly . susceptible,
viz., subjection to the excrutiating torture suffered by the East
Pakistanis if perchance. these voters dared to vote against
I 1 0
SUl'RHIE COURT REPORTS
11975] 3 S.<.R.
the Congress thus violating the basic guarantee of free and
fair elections contained ins. 123(2) of the Act.
fhe High Court's holdings on those charges may, at the outsd,
·!Jc set out, to get a hang of the controversy in this. appeal :
"According to the statement of Jabbar Munshi, which is.
reinforced by that of Sahed Ali. the respondent No. 1 had
offered Es. 2,000, to him for doing work fur him in the
election in the two villages of Rowmari
and Mariadhaj.
Shri Choudhury laid emphasis on the word 'inducing' used
in sub-clause (A) of Clause (I) of Section 123 and canvassed that we cannot spell out inducement by Jabbar Munshi
vis-a-vis the voters putting up in Rowmari and Mariadhaj
from his statement that he had been offered Rs. 2,000, to do
work for the respondent No. l in the election in the said two
villages.
Here, again, it is not possible to agree with Sri
Choudhury. If a priest of a village is pressed into service
by a candidate, who has offered to pay him handsomely, lo
help him i11 the election work, it becomes patent that the priest
is to use his influence as such in winning votes for the candidate who had approached him. Hence all the ingredients
of sub-clause (A) of clause (l) of section 123 are proved
by the dependable testimony of Jabbar Munshi and Sahcd
Ali with the consequence that the corrupt practice of bribery
attributed to rcsponuent No. J is established."
"In view of the above discussion of the rc:cvant cvidcnc~
I conclude. that Kanak Doimari ;;nd Kahiram Dcuri have
,poken the truth with the consequence that the respondent
No. l is proved to have solicited votes on the basis of his
being the 'on of a Boro Kachari woman. This appeal was
made up him in village which were inhabited by tribals
who may or may not be considered as Hindus but they arc
certainly not Muslims.
Therefore, .all the ingredients of
Chtu'ic ( 3) of s. 123 arc established:·
"The statements of the relevant witnesses of the pctiiicincr arc that the respondent No. I had told them that he
is half Hindu and half tribal because of his maternal lineage.
I bave
aJr,~ady held the statements of those witnesses as
ucccptable.
Nothing said by the respondent No. I in th·:
witness box has the effect of robbing the statement of those
witnesses of their quality as held by me. of bcinir credible.
Therefore, J hold that the allegations made in section C9 ( i )
C9(ii) of Part lil of the Anncxure arc
proved beyond
reasonable d:oubt and as such the respondent No. l is guilty
of the corrupt practice mentioned in clause ( 3) of section
123 of the Act."
It is mentioned in Section B that Lhc respondent threatened the Muslim voters that in case thcv voted against
the Congress, whose nominee he was, it would be possible
A
B
(
D
E
F
G
II
.·\
il I
c
A. II. '.\1JR r. s. HUDA (Krishna Iyer, J.)
111
this time in view of the new system o( voting introduced,
to dete<;t that fact and that in such an event they sh<J.ll be
severely dealt with.
According to the new voting system
introduced in 1972, it may be stated, each elector, to whom .
a ballot paper was issued, had either to make his signature
or place his thumb mark on the counter-foil of the ballot
paper.
That fact, it is mentioned in Section B, was prominently brought to the notice of the electors by respondent No. 1, The threat held out to them, besides that they
shall be scvc:n:ly dealt with in case tky voti:d against the
Congress, was that they shall be considered and treated as
Pakistanis and supporters of Yahya Khan and having worked
against the Congress Government which meant and implied
that they wcr1~ voting against Srimati Indira Gandhi and as·
such were anti-national.
1n Section F of Pan VI it was
stated that the respondent No. 1 and the men working with
him had propagated that if the electors voted in favour of a
candidate other than that of the Congress
'the
Con~ress
would carry out tortur anl'.ingst the Muslims as was done
in suppression by Pakistan".
"TI1e up-shot of the discussio11 of the evidence of a large
number of witnesses examined by the petitioner
and
tile
respondent No. l bearing on the aliegations set out in Sccitions B and F of PJrt VI is that those allegations arc proved
to the hilt."
Hearing this appeal. we realised that there was an endemic sc11>i·
tivity to election propaganda and method in certain regions which
would be wasted strategy else-where because human responses difkr
according to the socio-political conditioning of groups and commu·
11itics. Herc we are concerned with a tribal area of Assam, a border
State with a heterogenous composition of tribesmen, vaguely Hindu
hy persuasion. plainsmen Hindus and a considerable
number
of
".'luslims. A Mulla or Muslim minipriest may have sway over his
c•rthodox flock here while elsewhere his voice may be ignored.
A
t hrcat of East Pakistan type terror or pro-Pakistan branding is prone
to frighten many here while in Central lndia or the South such a
bogey may have less minatory impact. Religious appeal or communal
appetite in a bigoted and backward population is stronger than in an
enlightened or indifferent or other area with a Jong traditio1i of peaceful co-existence of variegated reli.gious groups or cosmopolitan peopk .
.It all depends . on the socio-political pathology or sensibility of each
province or constituency.
We cannot dog:matisc univcrsallr without
hcing convicted of social inexperience or lack of political rcafom.
Shri · Mukhericc, counsel for the respondent, is right in stressing the
interplay of divergent kinks making up the mores of the Dhing Asscm
bly constituency. Before we can competently judge human nature we
must educate ourselves about the behaviourism of
the
concerned
group avowedly pluralist in this case.
Law, after all, is ::i specie~ uf
sociology.
Even so, certain basic legal guidelines c.annot be Jost sight nf
while adjudging an election dispute. The verdict at the polls wears ::i
I l Z
SUPREME COURT REPOJUS
(1975) 3 S .. C.R.
protective mantle in a democratic polity. The Court will vacate such
ballot count return only on proof beyond reasonable doubt of corrupt
practices. Charges, such as have bcrn imputed here, arc vicwc:d as
quasi-criminal, carrying other penalties than losing a seat, and strong
testimony is needed to subvert a Returning officc•'s declaration.
On _
the other side of the scales, findings reached by the trial Judge will
A
not be reappraised and reversed in appeal unless palpable errors or
misapprcciation arc writ large on them.
Such
being our broad . B
perspective, let us come to g:rips with the facts and the law arising
in this case.
We will first deal with thi.: second charge-held proved by the High
Court but hardly easy of solution in the legal connotation of the prol'ision [s. 133 ( 3) I or the factual complex of forces-and it relates to
what may naively be called 'religious appeal'.
For an intelligent
understanding ()f this translusccnt provision the best beginning is to
reproduce the sub·scction and then search for the soul of this wholc-
>omc legal man 011 communalism in elections-a ban of Indian politics which uics hard, defiant of Jaw and our secularist creed. Liibwisc. the voluminous testimony in this case, bearing on the spectrum
of appeals attributable to a variety of shades and hues from crude
Islamic to plain ancestral kinship and tribal fellowship, baffies identification, being curiously psychic and sociological. In these areas of
evidence judicial navigation towards the port of truth is not so simple
as the homing instinct or habitual test of judges whereby they break
through false and doubtful depositions.
Local obsessions and subj.:ctiw exaggerations have to be kept in leash and objcctiv.; tuuch-
>toncs and safe \>roccdurcs relied on if' we arc not to get lost in mere
bulk of evidence or cynical negation of good and bad. To judge is
in part an esoteric art, not a rule of thumb and this case is .a
real
challenge to our ability to feel our way to veracity through univeraci:ty.
When elections arc challenged on grounds with a criminal taint, the
benefit of doubt in testimonial matters belongs to the returned candlidatc.
Section 123 ( 3) of the Act reads :
"Corrupt practices.-The following shall be deemed to be
corrupt pracl;iccs for the purpose of this Act :-
x
x
x
x
x
x
(3 J 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 th1.;
grounc.l of his religion, race, caste, community or language or
the use of, or appeal to religious symbols or the use of, or
appeal to, nat,ional symbols, ·such as the national flag or the
national embkm, for the furtherance of th!! prospects of the
election of that candidate or for prejudicially affecting the
election of any candidate."
·
The conscience of . this clause-'-and the core of the legal inhibitioni,; to impart penal incarnation to the secular mandate commonly expressed in biblical language :
D
II
B
c
D
E
F
G
H
A. H. MIR v. s. HUDA (Krishna Iyer, /.)
113
"Render therefore unto Caesar the things which are Caesar's;
·And unto God the things that are God's."
The founding faith of our poll process is to ostracise the c0mmunal
vice from the campaign, having suffered from this virus during the
Raj. This great idea must brighten the legal phrases so that the purpose, the whole purpose and nothing but the purpose may be .carried
into effect.
The gravamen of the charge as covered by sec. C(i) and C(ii J
of the petition is that the 1st respondent sought support from tribal>
on the score that he was half-tribal, half-Muslim-:his mother was of
Kachari tribe-while the petitioner was unmitigated· hundred-per-cent
Muslim, and amongst Hin'dus settled from the plains he pleaded that
he was after all halfHindu and so, obviously, more acceptable than
are undiluted Muslims like the petitioner.
The facts of parenta)!c
are that the l st respondent's mother was a tribal Hindu who wa~
converted to Islam on the eve of marriage to a Muslim. The refutation by the respondent has taken two forms.
Firstly, no such half·
tribal or like propaganda was· done and secondly, such a Hindu·
Muslim hybridisation in parentage, even if urged tactically before the
relevant communities, did not fall within the
obnoxions
provision
reg:irding religious or communal appeal. At best it was a sentimental
sop based on ancestry or kinship, religious rivalry in appeal
being
out of the ring since both candidates were apparently full-b'ooded
Muslims. We are free to agree that, what with mixed marriages and
change of religion and the .i!amut of beliefs and unbelief and like
social phonomena. viewed against the backdrop of a dymmic policy
of secuiarism and national integration. the correct construction
of
the sub-section is fraught with difficulties.
·
What is religion? What is communal or caste appeal? (We do
not have to deal with the thorny problems relating to appeal to
language, in this appeal) .. Some of the inherent conft:si011 bcscttiug
':ippeal to religion' have been indicated qv this Court in R'1hiin Kli:m
case.( 1) ·There are orthodox and heterodox wings in all
reiigionsschooJ<;, sects. protestant .!!roups and so on-more <o i'l
or'~
Iii<~
Hinduism with a hundred strands ranging from pantheism to atheism.
We are here concerned not so much with theology as with soc'ologv,
not with intra-religious feuds as with the divisive use of re!iei0us foith
by projecting them into and polluting. politics
and
social
life.
Strangely enough, both the candidates arc professing Muslim<., speak·
ing in formal terms, the petitioner being ;i revolutionarv c0mm•.nist
to boot.
Judicial insight into practical politks. mc1!'ming the d~"ree
of con•amination, through injection of religious, radal, caste or communal poison. of the blood-stream of healthv electoral pwcs<e~ is
~' socio-legal essay. as is discernible in this Court's ruling in Kui'i1r
Si11g,h v. lv!ukhti;1r S!ngh(~l that religion~ appeals can ·conceivably
play even ;n a s:tuat1011 where both cand1d:ltes swear by the
same
dcnomi1ntion or faith.
Within the fold, variable:' on2ntc :cnrl bh1n.0 d
areas ni,t. A fanatic may seek votes castigating
his
co-rc1igionist
(1) [1974] IT S.C.C. 660.
(2) A.l.R. 1965 S.C. 141.
9-L 379 Sup. CT75
114
SUPREME C6URT REPORTS
(1975] 3 S.C.R.
rival with reforming zeal as a de faco apostate. But to delve m~ticu
lously into th1;se Qi;l,rk mines of divergent opinions and clashing practices and hold that 'religious appeal' has been invoked is to cNerdo
legality and hamper social advance.
Without being obsessed by procedents and freeing ourselves from theological inhibitions we proceed
to interpret s. 123 ( 3) of th~ Act in the social setting of this case.
We cannot countenance, in the name of narrow Jaw, a push ba1;k to
movements blending of religions, races, castes and communities if it
will homogenise the people into national unity, social solidarity and
secular mentality. If the rule of law must run close to the rule of life,
this sociologkal view-point stands vindicated, since elections politically expose the social inside in the raw.
Taking this stance is to read legal realism into the
expression
'religious appeal' used in the relevant provision.
To
exhort
the
masses-assuming the appellant's facts to test the legal thrust of his
argument-to vote for himself because his mother was a tribal or a
Hindu, is perhaps prone to excite the clan feeling in a vicarious way,
though the appeal is by a Muslim.
Does this sympathy potential of
the appeal to the electorate vitiate the election as an appeal to religion to get votes ? To sensitize ~he voting masses on every politically
irrelevant appeal is bad but not yet illegal. Law lays down practical
norms, not prohibitions of intangible injuries.
In a pluralist sodety
like ours, a certain irremovable residum of 'minority complex'
will
haunt the polls, as it may, perhaps in a lesser measure, in the United
States or even the United Kingdom. A Jew, a black, a Catholic or
an Indian or woman will, without special appeals in that behalf, rouse
prejudices for and against in some countries.
Even in India,
th<!
religion or caste or community of the candidate may exude through
his name, dress, profession or other external indicium. Does it mean
that his candidature is imperilled by the inscription of his name or
caste suffix in posters or pamphlets ? Something more substantial,
intentional and oblique is necessary.
Similarly, mere
reference to
one's tribe, ancestry or genetic commingling may not be tainted with
the legal vice of religious or communal appeal, exceptional situations
apart. It may well be that a strong secularist candidate may plead
with the electorate to be non-communal and therefore vote for him
·on the basis that he was an inter-caste or inter-racial or inter-religiious
product and as such a symbol of communal unity.
Indeed, mixed
marriages mav accelerate national integration and a candidate cannot
be warned off by the Jaw from stressing this non-communal merit: of
his. That would be a perversion of the purpose of the i)rovision.
The substance of the appeal, if at all is-not the delicate, legal
concoction for Court consumption-that being of Hindu and Mm.Jim
extraction he i:; a less communal Mussalman.
If some mis-understand, ·the bulk understand and the masses have an uncanny political
sense. Viewed from another angle, the hortative exercise is relatable
to parentage, vaguely sounding in a sub-conscious clan feeling-too
remote, too attenuated to be a plain, or even indirect appeal on grounds
of religion or community. Those who urge, in
some
roundabout
manner 'Hindu Muslim Ek Ho' are doing no violence to law but
promote its object.
We disagree with any contrary
reasoning or
A
B
c
D
E
F
G
H
A. H. MIR v. s. HUDA (Krishna Iyer, J,)
11 5
A
finical approach and- hold that an appeal by a candidate that he personifies Hindu Muslim interplay does not 1.:ross the line of corrupt
practice.
The sharp edge of the appeal, not its elitist possibility or
over-nice imrlication, is the crucial, commonsense test.
Now fo the factual conclusion.
Did the 1st respondent project
a Hindu profile or, more plainly, did he articulate a Hindu communal
B
appeal ? Religious, it cguld not be. How .could the son of a woman,
who made pre-matrimonial switch from Iswara to Allah, app~al to
his religion, while himself wearing the Islamic inscription in his name?
To declare oneself an offspring of a religious renegade is not to appeal
to religion.
It is unlikely because it does not socially pay.
Even
Hindu tril;mls may probe beneath the skin and politically discover he
is not a Hindu. Moreover is it strategy in a fevered situation like a
C
hotly cO;ntested election, to propagate, in one part of the constituency
which is predominantly and backwardly Muslim, that one is a halfHindu ?
You can:not insulate such , appeals to specified villages as
no iron curtain halts election campaigns. Counter-productive would
have been the result. Whispers may have succeeded, not public meetings, if the object was discreetly to spread communal propaganda in a
secluded area put prudently to i;irohibit its diffusion into other areas
D
of the same constituency. But here the case is one of public meetings
and drama stage with loudspeakers and other publicity and wedding
gathering, not nocturnal sub silentia circulation of injurious
facts
appealing to communal feeling.
Before we 'proceed directiy to deal with the evidence we shall
refer to one more dimension of the law of corrupt practice based on
communal and allied appeals. The vote must be sought by the candiE
date exploiting his religion.
Here the 1st respondent is avowedly a
Muslim. An appeal to Hindus by a Muslim candidate on the ground
Of his religion is impossible under the Indian Sun, things as they stand.
Nor is there any i:;eligion or tribe for hybrids, something like 'Hinduslim'. The finer shades, minor tenets or avant garde movements present in all religions are not the target of the sub-section which seeks
. _to ~~trike at the cruder, baser, divisive trends being fostered by casteism.
F
co¢ffiunalism and the like. All great religions speak
basicaUy the
same truth and converge towards the Religion of Man.
Science itself
is tending to be spiritual and religions arc turning towards science.
Man and his Maker are the profound theme of the maior religions
but some men pervert this deeper urge to make gods go to war against
each other by forming hostile camps.
Indian history,
particularly
under the British, is tainted with godly blood of humans and the cunG
ning manoeuvres of candidates to resurrect that spirit during electoral
battles is anathema for the law. We have no hesitation in takin£ the
view that here was no relil!ious exploitation by the candidate of his
religion or community, legallv or factually.
Tribalism may perhaps
be stretched to embrace communalism but the accent in the cvidc1Kc
is on half-Hindu bias, not tribal identity.
The ground fails and the
clever twist in the evidence seems to be too sophisticafed an attempt
H
to pasmuster.
It is not out of place to point out that if we stretch semantics out
of context the appellant may, by calling his rival a
revolutionary
116
SUPREME COURT REPORTS
. [1975] 3 S.C.R.
communist (which he claims to be), com111it a corrupt practict; be- · A
cause to be a communist, nearly means, as a good Marxist, to be a
materialist disawoving all religious faiths.
Such obviously cannot be
the connotation.
Words of wide and vague import, like appeal to
religion, must receive restricted construction lest law run dot and upset accepted political standards.
For, certain political parties~-and
therefore their candidates-have mild commurial overtones and Courts
must confine themselves to clear mis-direction of voters grounded on
B
plain religious or communal appeal.
Again, to claim to
be
an
Assamese or Bengalee is not necessarily a communal
appeal--may
even be declaration of minority status of the group.
In certain circumstances such"-<t vote-catching technique may be
violative
o[
Article 123 ( 3). If'aJI depends on. the over-all factors and setting. ·
THE FACTS
If the appellant had placated the Hindus by a communa!ly pala~
table version of his ancestry, the news of the meeting would have taken
wings and the Muslim voters would have avenged themselves on him--
a risk he was unlikely to take, the contest being close and damag,e by
inflammatory recoil from the Islamic and being incalculable. We are
inclined to think that the probabilities are against the alleged half·
Hindu story.
Let us examine the oral evidence bearing 011 this issue. But since
this branch of the case is builit on lip testimony, judicial scepticism has
lo be activised before upholding this species of alleged corrupt practice.
Witnesses may lie with counterfeit candour, and judicial hunch
c
D
may not successfully X-ray the unveracity ot apparentlv disinterested·
persons. While it may be hazardous to stake a conclusion . on so· E
serious and undetectable a matter as
an election result because
~1 single witnes~ or more swears that way, no rule of. thumb will
work, since Courts weigh, not count, witnesses. Broad probabilities.
corroboration, circumstantial or oral, the non"production of the best
evidence and a host of like factors have .tC' be taken note of; even if
not elaborately documented in the judgment. The screening and testing processes will also give due weight to the ·Hal Judge's sense of
F
credence. Ultimately. the appellate Court has to have an appraisal of
the witnesses' truthfulness and accuracy, the Jud~'s experience of
men and matters and careful reflection being the lie-Getector.
The pleadings of the petitioner leave much to be desired from the
point of view -of precision and particularity, especiallv specification of
persons and places so essential to fair-play in the legal process in such
matters. Even if one winks at this blemish. there must be strict proof
G
otherwise. The general criticisms made bv Mr. Garg, counsel for the
«ppel!ant. have force and we will deal wi.th them in the light of the
explanation offered by Shri Chatterjee for the petitioner.
The apocllar\t has denied havin!l: made anv such Hindu or trih:il
apoeal to the voters and the burden of proof rests on the responden.•.-
pctitioner. We may also discard the new case casually set up through
H
sn111e witncsse<; that the Congress candid1t<' had declared
hims~Jf "a
Hindu (not half hut full) and asked at public meeting<; for supoort on
that footing. Equally adventitious is the emergence of the evidence
A
B
c
D
F
G
H
A. H. MIR v. s. HUDA (Krishna Iyer, J,)
11, 7
that the appellant campaigned on the basis of his being a~ Assamese:
While abs~nce of particulars does not stand in the way of the Court
considering the evidence led _on a ground of corrupt practice if such
evidence had been admitted without objection and no prejudice has
been caused (vide AIR 1960 SC 200) still a case, departing from the
pleading has frail prospects of acceptance. The failure to plead is a
blow to the credibility of after-thought testimony.
In the present
instance, although some witnesses have lent up support to , the story
that the appellant urged that he be regarded as Hindu ·and other P.Ws.
that, being Assamese, the voters should back him, we do not give
credit to such belated ipse dixits. . May be, as earlier observed, the
Assamese appeal, or tribal sentiment, may in certain situations savour
of communal appeal and on other occasions be a request by a member
of a weaker or backward or minority section to the people for voting
help-a democratic gesture-we need not examine such possibilities
here, the evidence on the point being naked assertions unfounded in
pleadings and unconvincing on probabilities.
The Hindus or Assamese or tribals were small numerically, about 80% of the voters being
Muslims and the balance sheet would show more loss than gain if
one took up a Hindu posture. Nor is there any force in the submission that witnesses R. Ws. 30, 8, 9 and 12 themselves had admitted
the holding of the alleged meetings because they do not agree on the
religious or communal appeal at all.
The heap of half-Hindu. evidence may be analysed, not meticulously but. applying commonsense tests.
P. Ws. 53, 54, 55, 57, 65,
66, 67, 68, 79, 80 generally testify to the case of public appeal in
tribal and non-Muslim areas that the petitioner has part-Hindu blood
flowing in his veins and must be voted for on that basis. Impressive
in numbers they are but the phalanx breaks down on closer examination.
We will eshew the impressionistic approach to the credibility of
witnesses but look out for interestedness, lack of corroboration .and
either unnatural features.
By a similar token we will examine the
half-tribal appeal. The learned trial Judge has genera!ly chosen to
believe these witnesses and we will have that in mind while appraising their testimonial worth. P.W. 53 testifies to the appellant's visit
to a village library and asking for votes pleading that he may be taken
as a Hindu 'because his mother is a Kachari Hindu'. He admits that
the appellant is a Mohammedan and still states that 'nobody raised
any objection to what he said'. From his evidence it is seen that there
·were three persons Puran, Padmaram and Dharani who were workers
of the present respondent sitting in the library.
Although they are
interested witnesses their corroboration could have added some weight
to the testimony of P. W. 53. ' Moreover the same witness deposes
'A polling Officer was also sitting with us when respondent No. 1
talked'. Obviously the evidence of such a witness would have rein~
forced the credibility of P. W. 53. We are unable to take at its face
value the testimony of this easy witness particularly because he g0es
beyond the half-Hindu theory trotted out in the pleadings.
/
P. W. 54 is no better. He also speaks to the request by the appellant that he be taken as a Hindu by the voters of the village since
118
SUPREME COURT REPORTS
(1975] 3 S'.C.R.
..,
maternal Hinduism flowed through his veins.
However, he agrees
A
that the appellant bears a Muslim name and it is unlikely that he
would have visited a Hindu wedding to claim himself a Hindu. The
surprising thing about this witness is that he swears 'I took the respondent No. 1 to be a Hindu as well as a Muslim'. That a unami-
. mous decision to vote for the election-petitioner was reversed unanimously the next day after the aforesaid appeal to vote on the basis
of a Hindu maternity is liable to be rejected even by the
gullible.
B
We feel P. W. 54 is speaking with his tongue in his cheek.
P. W. 55 also fares ill although he apparently corroborates P. W.
54.