# GADAKH Y ASHWANTRAO KANKARRAO v. E.V. ALIAS BALASAHEB VIKHE PATIL AND ORS

- **Citation:** [1993] Supp. 3 S.C.R. 731
- **Court:** Supreme Court of India
- **Decided:** 1993-11-19
- **Case number:** Election Petition No. 2 of 1991
- **Bench:** J.S. Verma, N.P. Singh, N. Venkatachala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gadakh-y-ashwantrao-kankarrao-v-e-v-alias-balasaheb-vikhe-patil-and-ors-12020
- **Pages:** 65

## Headnote

B
Representation of the People Act, 1951-Sec: 123(4)-Conupt Prac·
tice-R.equirements of-Expression 'statement off act'-Meanin~nus of
proof
Appreciation of evidenct-Standard of proof of a quasi-criminal charge
-Proof required as in a criminal charge-Strictness of pleadings-Liberal
construction not the proper approach-Election to be contested on positive
vote-Purity of elections-Duty of Courts..
·
c
Offending statement of fact which is falsely published by any other D
person-Consent of candidatt-Standard of proof
Statements relating to payment by candidate to a political party's fund--
Contribution prior to becoming a candidate whether amounts to corrupt
practice u/s 123 (4)-Held, No.
Allegation of payment to a candidate for shifting to another constituency-Statement of fact proved to be f alse-l'ub/ication in newspaper-Wltether
amounts to corrupt practice-Held, yes.
E
Statement of a proposal to distribute bicycles to participants in a rally--
Statement of likelihood of distribution of sarees, dhoties, liquor and cash in
F
constituency-Expression of appreltension-Wltether constitutes corrupt practice-Held, No.
Hiring of workers for election campaign-Not an offending statement
of fact u/s 123 ( 4).
G
Statement that a candidate was likely to give money for repair of
Cltawdies and renovation of temples-Not a disparaging act relating to personal character or conduct.
Statement made advising voters to accept whatever was offered by a H
731
732
SUPREME COURT REPORTS. [1993) SUPP. 3 S.C.R.
A
candidate-Statement to cast vote uninfluenced by extraneous consideration--
Whether constitute conupt practice-Held, No.
General Statements made by Chief Minister projecting his plllty's candidate as upholder of morality and honesty-Exho1tation made to people to
vote for his pa1ty's candidate-Cannot constitute statements off act relating to
B character and conauct of opposite candidate-Not a conupt practice.
Section 123(6}-<:eiling on expenditure-Prescription on ceiling fixed
only in respect of expenditure by candidate-Expenditure incurred by party
outside the net of legal sanction-Lacuna in law-l'arliament to fill.
C
Section 101 (b )-Election-Invalidation to election of returned canD
didate void for commission of corrupt practice-Candidate securing next
highest number of vote~Whether can be declared elected.
Section 116-A-Appeaf-Scope of.
ELECTIONS-Election campaign-Trend of-Duty of political parties-Election to be contested on positive vote-Shift in election campaign in
positive direction emphasised.
For the Lok Sabha seat from Ahemdnagar Parliamentary Con·
E stituency, the returned candidate, the appellant was declared elected
against his nearest rival, the election petitioner.
The election petitioner filed an election petition praying that the
election of the appellant be declared as void and the election petitioner be
declared to have been duly elected from that constituency. The validity of
F
the election was challenged on the grounds that the appellant had com·
mitted the corrupt practice u/s 123(4) of the Representation of the People
Act; that the appellant had made certain false statements in his speeches
relating to the personal character and conduct of the election petitioner
attributing the use of corrupt methods by him, with a view to prejudice the
G prospects of his election which was published in the daily newspaper; that
in the public meetings, the then Chief Minister of Maharashtra had made
similar statements relating to the personal character of the election
petitioner, in the presence of and along with the appellant; that these
statements amounted to corrupt practice u/s 123(4) of the Act on 'lccount
of which the appellant's election was void and the then Chief Minister was
H liable to be named in accordance with Section 99 of the Act.
KANKARRAOv. B.V.PATIL
733
After the evidence was recorded and the appellant had also been A
examined, the High Court issued a notice u/s 99 to the then Chief Minister
of Maharashtra to show cause

## Text

_Characters 0–39,978 of 158,101. This is a partial read: ask again with offset=39978 for what follows._

GADAKH Y ASHWANTRAO KANKARRAO
A
v.
E.V. ALIAS BALASAHEB VIKHE PATIL AND ORS.
NOVEMBER 19, 1993
[J.S. VERMA, N.P. SINGH AND N. VENKATACHALA, JJ.]
B
Representation of the People Act, 1951-Sec: 123(4)-Conupt Prac·
tice-R.equirements of-Expression 'statement off act'-Meanin~nus of
proof
Appreciation of evidenct-Standard of proof of a quasi-criminal charge
-Proof required as in a criminal charge-Strictness of pleadings-Liberal
construction not the proper approach-Election to be contested on positive
vote-Purity of elections-Duty of Courts..
·
c
Offending statement of fact which is falsely published by any other D
person-Consent of candidatt-Standard of proof
Statements relating to payment by candidate to a political party's fund--
Contribution prior to becoming a candidate whether amounts to corrupt
practice u/s 123 (4)-Held, No.
Allegation of payment to a candidate for shifting to another constituency-Statement of fact proved to be f alse-l'ub/ication in newspaper-Wltether
amounts to corrupt practice-Held, yes.
E
Statement of a proposal to distribute bicycles to participants in a rally--
Statement of likelihood of distribution of sarees, dhoties, liquor and cash in
F
constituency-Expression of appreltension-Wltether constitutes corrupt practice-Held, No.
Hiring of workers for election campaign-Not an offending statement
of fact u/s 123 ( 4).
G
Statement that a candidate was likely to give money for repair of
Cltawdies and renovation of temples-Not a disparaging act relating to personal character or conduct.
Statement made advising voters to accept whatever was offered by a H
731
732
SUPREME COURT REPORTS. [1993) SUPP. 3 S.C.R.
A
candidate-Statement to cast vote uninfluenced by extraneous consideration--
Whether constitute conupt practice-Held, No.
General Statements made by Chief Minister projecting his plllty's candidate as upholder of morality and honesty-Exho1tation made to people to
vote for his pa1ty's candidate-Cannot constitute statements off act relating to
B character and conauct of opposite candidate-Not a conupt practice.
Section 123(6}-<:eiling on expenditure-Prescription on ceiling fixed
only in respect of expenditure by candidate-Expenditure incurred by party
outside the net of legal sanction-Lacuna in law-l'arliament to fill.
C
Section 101 (b )-Election-Invalidation to election of returned canD
didate void for commission of corrupt practice-Candidate securing next
highest number of vote~Whether can be declared elected.
Section 116-A-Appeaf-Scope of.
ELECTIONS-Election campaign-Trend of-Duty of political parties-Election to be contested on positive vote-Shift in election campaign in
positive direction emphasised.
For the Lok Sabha seat from Ahemdnagar Parliamentary Con·
E stituency, the returned candidate, the appellant was declared elected
against his nearest rival, the election petitioner.
The election petitioner filed an election petition praying that the
election of the appellant be declared as void and the election petitioner be
declared to have been duly elected from that constituency. The validity of
F
the election was challenged on the grounds that the appellant had com·
mitted the corrupt practice u/s 123(4) of the Representation of the People
Act; that the appellant had made certain false statements in his speeches
relating to the personal character and conduct of the election petitioner
attributing the use of corrupt methods by him, with a view to prejudice the
G prospects of his election which was published in the daily newspaper; that
in the public meetings, the then Chief Minister of Maharashtra had made
similar statements relating to the personal character of the election
petitioner, in the presence of and along with the appellant; that these
statements amounted to corrupt practice u/s 123(4) of the Act on 'lccount
of which the appellant's election was void and the then Chief Minister was
H liable to be named in accordance with Section 99 of the Act.
KANKARRAOv. B.V.PATIL
733
After the evidence was recorded and the appellant had also been A
examined, the High Court issued a notice u/s 99 to the then Chief Minister
of Maharashtra to show cause why he should not be so named. The then
Chief Minister challenged the issuance of this notice by a Special Leave
Petition, but the same was dismissed requiring him to raise his objections
in the first instance at the trial of the election petition in the High Court B
itself. He then raised his objections before the High Court but chose not
to adduce any evidence or to apply for recall of any witness already
examined for further cross-examination. However, he denied the commission of any such corrupt practice as did the appellant at the trial of the
election petition.
The High Court allowed the election petition and declared the election of the returned candidate to be void making a further declaration that
the election petitioner was duly elected. The High Court also named the
then Chief Minister of Maharashtra for commission of the corrupt pracc
tice u/s 123( 4) of the Act alongwith the returned candidate. It was held that D
the returned candidate and the Chief Minister did make supplementary
statements of each other stating that the petitioner was to spend Rs. 3
crores for his election, that the had paid Rs. SO lakhs to Janata Dal, Rs.
20 ~khs were paid to the Janata Dal Candidate for withdrawing from one
constituency and to contest from another constituency; that the petitions E
was to take out rally of 5000 cycles and distribute the cycles amongst the
participants, that the petitioner was to spend for repairs of Chawdies and
had spent Rs. 5,000 for repair of Chawdies. It was also stated that the
petitioner was to distribute sarees, dhoties, liquor amongst the workers
with a view to attract them and it was advised that the voters must accept F
them and vote for Congress. The High Court concluded that these statements would touch upon the personal character and conduct of the
petitioner.
These appeals were filed u/s 116A of the Act, against the judgment
of the High Court. The returned candidate challenged declaration of his G
election to be void and the further declaration of the election petitioner to
have been duly elected. The respondent Nos. 5 & 6 had challenged merely
the further declaration of the petitioner to have been duly elected, in their
appeals. The notice filed appeal against naming him for commission of the
corrupt practice u/s 123(4) along with the returned candidate.
H
734
SUPREME COURT REPORTS {1993) SUPP. 3 s.c:R.
A
The appellant, returned candidate atleged that he did not make any
B
c
of the statements attributed to him and at any rate none of those statements amounted to the corrupt practice u/s 123 (4) of the Act. The noticee,
the then Chief Minister contended that the statements attributed to him,
which did not include the statement of payment of Rs. 50 lakhs to the
election fund of Janta Dal and the payment of Rs. 20 lakhs to the Janta
Dal candidate for shifting to another constituency, did not satisfy the
requirements of Section 123(4) and tlierefore, did not amount to the
corrupt pra_ctice thereunder; that apart from there being no ground to
declare the election of the returned candidate to be void, no ground had .
been made that the election petitioner to have been duly elected; that the
making of these statements attributed to him or at least the disparaging
part thereof by him was not proved by any acceptable evidence and at any
rate all the requirements of section 123(4) were not proved to hold that
the -corrupt practice was committed by the returned candidate; that the
charge of commission of a corrupt prac~ice being of a quasi-criminal .
D nature, the standard of proof applicable was ofa.·cri~inal charge and not
merely that of preponderance of probabilities of a ciVil ease; and that the
statements which were made were only to caution the electorate against
possible misuse of money power. On the point relating to the manner of
appreciation of evidence in such a case, the appellant submitted that every
E statement reflecting on the personal character of a candidate does not
amount to a corrupt P.ractice since it does not prejudice the election in the
prevailing political climate; that the existing norms do not match the
earlier norms and, therefore, every reflection on a candidate's character
does not necessarily prejudice his election since the electorate is not
F influenced by such a statement in the pravaling electoral scene since they
are not taken seriously by the voters due to the falling ethical standards;
that political 11"aders have a duty to educate the electorate against possible
malpractices which are now not uncommon during the election and making ,
of such statements was desirable and that every allegation against a
candidate of his committing a corrupt practice was not moral turpitude
G adversely affecting the personal character of the candidate to constitute
the corrupt practice u/s 123(4) of the Act; that every statement was not a
'statement of fact' and, therefore, a statement made about ·future apprehension or opinion of the maker, did not fall within the ambit of this
expression and that most of the statements attributed to the returned
H candidate and all the statements attributed to the then Chief Minister did
. KANKARRAOv. B.V.PATIL
735
not constitute 'Statement of fact' within the meaning of this expression in A
Section 123(4); and that all these statements were within the permissible
electoral practice, necessary for education of the electorate.
The respondent contended that the expression 'statement of fact' had
to be given a wider meaning to include even a statement relating to the
state of mind of the other person about his future conduct and, therefore,
all the statements attributed to the appellants fell within the meaning of
this expression.
The notice submitted that to constitute corrupt practice uf!; 123(4),
the consent of the returned candidate to the making of these statements
B
c
by the then Chief Minister was also essential which had neither been
pleaded nor proved; that the fact of candidate's presence at the time when
these statements were alleged to have been made by him in the public
meeting was not sufficient to prove the consent of the returned candidate
requisite for constituting the corrupt practice u/s 123(4) and that the
statements attributed to the notice did not constitute corrupt practice u/s D
123(4) of the Act as the requirements of that provision were not satisfied.
Disposing of the matter, this Court
HELD : 1. The High Court's judgment declaring the election of the
appellant, the returned candidate to be void for commission of corrupt
practice under Section 123(4) of the Representation of the People Act is
upheld and the further declaration made by the High Court that the
election petitioner was duly elected is set aside. The High Com ~'s order
naming the then Chief Minister of Maharashtra under Section 99 of the
E
Act for commission of the corrupt practice under 123(4) is also set aside. F
(794-F-G]
2. Allegations of corrupt practice are of a quasi-criminal nature and
the proof that would be required.in support of such allegations would be
as in a criminal charge and not mere preponderance of probabilities as in
a civil matter. (765-D]
G
Surinder Singh v. Hardial Singh & Ors., (1985] 1 SCC 91 and Megraj
Patodia v. R.K Bir/a & Ors., [1971] 2 SCR 118, relied on.
Samant N. Balakrishnu etc. v. George Fernadez & Ors. etc, [1969] 3
SCR 603; Azhar Hussain v. Rajiv Gandh~ [1986] Supp. SCC 315; Lalit H
736
SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R ..
A
Kishore Chatwvedi v. Jagdish Prasad Thada & Ors., (1990] Supp SCC 248;
Dau/at Ram Chauhan v.Anand Slza1111a, [1984] 2 SCC 64 andM.J. Zakha1ia
Sait v. T. M. Mohammed & 01:1·., [1990) 3 SCC 396, referred to.
B
3.1 The plain meaning of Section 123.(4) indicates that it is not every
statement but only 'a statement of fact' to which the provision applies, that
the statement of fact should be false; that such statement should be made
believing it to be false or at least not true; that it should relate to the
personal character or conduct etc. of any candidate; and it should be
reasonably calculated to prejudice the prospects of that candidate's election. tJnless all these requirements are satisfied, the state~ent does not
C constitute corrupt practice under Section 123(4) of Act howseever un·
desirable, morally or ethically, the making of that statenient may be
otherwise. [775-H, 776-A]
3.2 Every statement of fact in relation to the personal character or
D conduct of any candidate does not amount to a corrupt pr.actice under
Section 123(4) unless all the requirements of the provision are satisfied,
notwithstanding the fact that such a statement may be defamatory i•
character. The additional requirements to constitute a corrupt practice are
obviously to maintain the delicate balance between the freedom of speech
E
of an individual and public interest of giving full information to the
electorate of the candidates. There is no presumption of falsity of such a
statement of fact for the purpose of Section 123(4) as it is under the law
of defamation; and apart from proving the statement of fact to be false, it
must also be shown· that the maker of the statement either believed it to
· F
be false or did not believe it to be true. Irrespective of the quantum of I
evidence necessary to discharge the initial onus of leading evidence, the
burden of proving these requirements on the evidence adduced remains on
the person alleging commission of the corrupt practice. The object of
making this provision more stringent is to emphasise the significance of
freedom of speech in this sphere while prohibiting the making of such
G statements of fact relating to the personal character or conduct of any
candidate which are not merely false but which are also believed to be false
or not believed to be true by the maker. The grater latitude in election law
is meant to serve the public purpose if the statement found to be false is
made with the belief in its truth based on reasonable grounds and it is not
H intended to be a licence for making a scurrilous attack on the opponents
recklessly. [766-B·C·D·E]
KANKARRAO v. B.V. PATIL
737
3.3 The primary requirements of Section 123(4) are that the stateA
ment should be a 'statement of fact' which is 'false' and which the maker
either 'believes to be false' or 'does not believe to be true'. The burden of
proving the satisfaction of all these requirements is no him who alleges
commission of the corrupt practice. The onus of leading evidence relating
to some requirements is however light in view of their nature. Once the B
initial onus is discharged, the onus shifts to the other side. For proving
the statement of fact to be false, the initial onus is discharged and the
burden shifts to the other side by assertion of its falsity on oath whereafter
it is for the other side to rebut the same. Similarly, the nature of belief of
the maker being primarily related to the state of mind of the maker, the
initial burden is discharged by an assertion on oath to that effect. If there C
be any circumstances relevant for proving and justifying the belief of the
maker, that also would be a matter of evidence. The maker of the statement
knows best that material on which his belief was formed and, therefore, it
is for him to prove the same. Whether the maker of the statement believed
it to be false or did not believe it to be true, is then ordinarily a matter of D
inference from the facts so proved. (766-F-G-H; 767-A-B]
3.4 For constituting the C()rrupt practice in Section 123(4), all the
requirements thereof must be satisfactorily proved. A statement o( fact for
the purpose of Section 123 ( 4) can be one which is capable of proof as 'false'
and which the maker either 'believed to be false' or 'did not believe to be E
true' at the time ofmaking,it. These further requirements of its falsity and
nature of belief of the maker at the time of making the statement of fact
are essential requirements without which the 'statement of fact' is not the
one contemplated by Section 123(4). A 'statement offact' can be· proved to
be 'false' only if it relates to an event which bas happened and not to a F
hypothetical future possibility. Similarly, the belief of the maker about its
falsity or the lack of belief in its truth relates to an existing fact and not
to a hypothetical future apprehension howsoever honestly one may believe
in its likelihood. Any statement made which is a conjecture of a likelihood
in future, would. not come within the ambit of the expression "statement of
fact" used in Section 123(4). This is also supported by the fact that G
another requirement of Section 123(4) is that the statement o( fact made
should be reasonably calculated to prejudice the prospects of that
candidate's election. This further requirement cannot be satisfied by merely stating a likely apprehension for the future and if the even does not
happen, this requirement cannot be tested. It is a different matter if the H
738
SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.
A statement amounts to an opinion relating to the personal character or
conduct of any candidate which is based on existing or past acts of the
candidate. (768-A-B-C-D-E]
Kumara Nand v. Brijmohan Lal Shamia, (1967) 2 SCR 127; Nepal
Chand Roy v. Netaji Chandra Das & Ors., (1971) 3 SCC 303; T.K. Gangi v.
B M. C. Anjaneya Reddy & Ors., 22 E.L.R 261; Gurnji Shrihari Baliram Jivatode
v. Vithalrao & Ors., (1969) 1 SCC 82; Ram Chand Bhatia v. Hardayal, [1986)
1 SCR 177; Inder Lal v. Lal Singh, (1962) Supp. 3 SCR 114 and Sheopat
Singh v. Ram Pratap, (1965) 1SCR175, relied on.
C
3.5 The meaning of the expression 'statement of fact' used in Section
123(4), must be such which is apposite in the context and even if the
meaning of the word "fact" be wider to include opinion about another
person and apprehensions about his future conduct, that is not sufficient
to so construe the expression "statement of fact" in this provision unless
it fits in the context. A pragmatic test is to examine whether the meaning
D given to the expression 'statement of fact' is capable of satisfying the other
requirements of the provisions. It is only that meaning of this expression
which is capable of satisfying the other requirements of the provision
which can be its true meaning in the context. (767-F-G-H]
E
Salmond on juris.prudence, 12th Edition, p.69, referred to.
4. The consent of the candidate for the purposes of Section 123(4)
when the offending statement of fact which is false is published by any
other person may be proved by inference from the circumstances and not
necessarily by positive evidence to that effect since positive evidence of
F
consent may not be available. (771-F]
G
B.R. Rao v. N.G. Ranga, (1970) 3 SCC 576; Narasingh Charan Mohanty v. Surendra Mohanty, (1974) 2 SCR 39 and Samant N. Balakrishna etc. v.
George Fernandez & Ors. etc., (1969) 3 SCR 603, relied on.
5.1 The allegations made against the appellant was that he stated that
the election petitioner had an election budget of Rs. 3 crores. The 9uestion
in the present case related only to the corrupt practice specified in sub~.sec- .
tion (4) of Section 123 and not to the corrupt practice under sub-section (6)
thereof relating to the incurring or authorising of expenditure in contravenH tion of Section 77 of the Act. Therefore the only point was whether the
...
KANKARRAO v. B.V. PATIL
739
statement that the election petitioner had an election budget of Rs. 3 crores A
was a false statement of fact. So far as the means of the candidates was
concerned, both appeared to be considerably affluent. The electorate must
have been well aware of their means and, therefore, this was a neutral
circumstance which by itself had no significance bearing on the other
statements attributed to the appellant. (776-D-E-G-H; 777-A]
B
5.2. The statement of the appellant alleging payment of Rs. 50 Lakhs
by the election petitioner to Janata Dal election fund did not necessarily
imply that this payment was for shifting its candidate to another constituency particularly when no other details were given. This statement
had, therefore to be examined as the allegation of contribution to the C
election fund of a political party. There was no allegation that this payment
was alleged to have been made at any time after the election petitioner had
become a candidate at the election. It was doubt if the mere aJJegation of
contribution to a political party's election fund prior to becoming a candidate can amount to the corrupt practice under Section 123(4) of the Act.
(777-H; 778-A-B] D
5.3 The requirement of Section 123(4) that this statement about
payment of Rs. 20 lakhs by the election petitioners to the Janata Dal
candidate for withdrawing from a constituency and shifting to another
constituency was a statement of fact' which was 'false' was duly proved. E
The publication of these statements was by the appellant himself in a
public meeting and in the interview given for being published in the
Maharashtra Times, and therefore, the further requirement of its publication as required by Section 123(4) was also proved. This false statement
of fact was in relation to the personal character or conduct of the election
petitioner and it did not relate merely to his political character or conduct. F
The statement was reasonably calculated to prejudice the prospects of the
election petitioner's elections inasmuch as it conveyed that he had bribed
the Janata Dal candidate by payment of Rs. 20 Lakhs to withdraw his
candidature from this constituency for his benefit. (778-F-G-H; 779-A]
5.4 The election petitioner had denied the payment of Rs .. 20 lakhs G
and also asserted that the appellant while maldng the statement did not
believe it to true. Even though the burden on the pleadings to prove the
satisfaction of this requirement was on the election petitioner yet the initial
burden of leading evidence of that fact was discharged shifting the burden
of rebutting the same to the appellant. In his deposition the appellant did H
740
SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.
A not believe in the truth of the information given to him about the payment
of Rs. 20 lakhs by the election petitioner to a candidate and the latter
withdrawing from the COJ!Stituency for that reason. In such a situation, the
appellant's admission in his cross examination that he did not believe the
allegation to be true had the effect of reinforcing the petitioner's assertion
B to this effect instead of negativing it. It could not, therefore, be doubted
that the appellant did not believe in the truth of this allegation made
against the petitioner when he said in his speech and interview that Rs. 20
lakhs had been paid by the petitioner to the Janata Dal candidate for
withdrawing from this constituency and shifting to another constituency.
All the requirements of Sectio~ 123(4) were satisfied and the false stateC ment of fact made to this effect by the appellant in respect of the personal
character and conduct of the election petitioner amounted to the corrupt
practice under Section 123(4) of the Act. This along was sufficient for
declaring the election of appellant to be void.
D
[779-E-F-H; 782-A-B; 785-F-G]
5.5. The expression of a mere apprehension which did not come true
apart from not being a 'statement of fact', did not satisfy the other
requirements of Section 123(4). The statement of a proposal to take out a
rally of 5000 bicycles and then distribute the bicycle to the participants
related to the f~ture and was·at best merely the expression of an apprehenE sion. No one had even suggested that such a rally was taken out at any
time during the election campaign by the petitioner. It was an apprehension which did not materialise and, therefore, there was no reasonable
.likelihood of any impact thereof on the mind of the voters. Similar was the
stntement alleged to have been made of the likelihood of distribution of
F
G
sarees, dhoties, liquor and cash in the constituency. No one had said that
such a distribution of any of these articles was made by the petitioner
during the election campaign. Such a statement, if made, was therefore
another apprehension which did not come true and, therefore, could not
affect the mind of the voters. [786-B-C-D]
5.6. Mere hiring of worker for election campaign is not an offending
statement of fact under Section 123(4). Unless the hiring of workers by
payment of money resulted in exceeding the permissible maximum limit of
election expenditure to constitute the corrupt practice under Section
123(6), this fact along would not constitute the corrupt practice under
H Section 123(4). [786-E-F-G]
-
KANKARRAOv. B.V.PATIL
741
S.7. Mere repair of Chawdies or renovation of temples is not a disA
paraging act relating to the personal character or conduct of anyone unless
the further requirements of section 123 ( 4) are proved including the requirement of its impact on the mind of the electorate that it was reasonably
calculated to prejudice the prospects of that candidate. [787-B-C]
6.1. The statements attributed to the then Chief Minister of
Maharashtra in the meetings et f acie did not amo•J~t to 'statements of fact'
relating to the personal character or conduct of the petitioners being only
B
the expression of his opinion based on apprehensions about the likely
future conduct of the petitioner or relating only to his political character .
which did not fall within ambit of Section 123(4) of the R.P. Act. The C
statement of the Chief Minister that he had no objection to acceptance of
the articles if they were distributed did not fall within the net of Section
123(4). The statement was an exhortation to the electorate to support
morality and honesty to belittle and destroy the force of wealth and ego
opposed to it. This was merely an exhortation of the speaker to support D
morality and honesty against money power and ego. These general statements made projecting his party's candidate as. ~e upholder of morality
and honesty against the forces guided by money power and ego amounted
to his opinion of the kind of representation made by the two candidates
irrespective of the correctness or otherwise of that opinion. The exhorta·
tion made to the people to vote for his party's candidate as the upholder E
of morality and honesty could not be treated as statements of fact relating
to the character and conduct of the election petitioner amounting to
vilification of his character or conduct. Thus, none of the statements of the
Chief Minister constituted the corrupt practice under Section 123(4) of the
R.P. Act. The stateuaents wherein he said that the petitioner chose to F
contest from the South constituency being a famine prone region wherein·
the people were poor for the purpose of purchasing their self respect and
that the petitioner had stated activities to win the election by efforts of
interested parties by playing their game of purchasing sel~ respect of the
poor people did not come within Section 123(4). In one statement, he said
that money alone could not be an important motivation in the election and
there was need of ideology, policy, programme and morality. He then added
that it was wrong to give up morality and leave the party when one's wish
·a
was not fulfilled and to join hands with other parties. This was in the
background of the petitioner leaving the Congress (I) Party when the party
ticket was not given to him and he contesting the election with the help of H
742
SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.
· A
other parties. The suggestion was that abandoning the party and switching
of loyalty was not morally and ideologically correct. In the admitted
background of the petitioner, this comment was on his political morality
and character because of his leaving the Congress (I) Party on denial of
ticket to him to and contesting against the Congress (I) Party's candidate.
B This statement did not relate to the personal character or conduct of the
petitioner but merely to his political character and morality. This did not
fall within Section U3(4). [788·F·G; 789·D·G·H; 790·A·G]
c
Manohar Joshi v. Damodar Talyaba & Ors., (1991) 2 SCC 342,
referred to.
6.2. Some or the statements, made by the Chief Minister even thQugh
not amounting to corrupt practice under the enacted law, did not measure
upto the desired level or electioneering at the top echelon or political
D leadership to set trend for a healthly election campaign. His suggestion to
the voters to accept monies etc., if distributed by a candidate, without being
inftuenced thereby as a means or propagating socialism exhibited a bizarre
perception or socialism. It was shocking enough that appellant said so but
far worse to find the Chief Minister endorse that view. Intended as
sarcasm It depicted poor tasb!. Ir this be the level of election campaign at
E the top, It ls bound to degenerate as it descends to the lower levels. Some
portions or the speeches or the Chief Minister were indeed high precept
but the electorate would have benefited more by knowledge or the track
record or the preachers' practice or the same. There was no such attempt.
The degree or responsibility and the level or electioneering excepted or the
F top leadership was wanting in these speeches. Ir probity in public life is to
be maintained and purity or elections is not a myth or mere catch-phrase,
a higher level of electioneering is expected at least at the highest level of
political leadership. This shift in the election campaign has, therefore, to
be in the positive direction to enable the electorate to case its positive vote
G instead of the negative vote by rejecting those with greater demerits. This
duty is cast more heavily on the senior leaders of all the political parties
to ensure that the election campaign does not degenerate into a campaign
or vilification, which may tend to promote violence during elections and
lead to criminalisation of politics. The present trend of election campaign
must be reversed to make the democracy more meaningful by ensuring
H purity of elections. (792-C·D·E; 791-H; 792·A·B] .
. KANKARRAOv. B.V.PATIL
743
7 .1 If purity of election is the essence of democracy and providing A
for inv~lidation of an election on the ground of commission of any corrupt
practice is the object of enacting these provisions, it cannot be accepted
that the election scene having degenerated over the years, appreciation of
evidence for determining the commission of a corrupt practice must be
made liberally because of the lower values in the arena of elections. If the B
rule of law has to be preserved as the essence of the democracy of which
purity of elections ls a necessary concomitant, it ls the duty of the courts
to appreciate the evidence and construe the law ln a manner which would
subserve this higher purpose and not even imperceptibly facilitate accep·
tance, much less amnnance, of the falling electoral standards. For
democracy to survive, rule of law must prevail, and lt Is necessary that C
the best available men should be chosen as people's representatives for
proper governance of the country. This can be best achieved through men
of high moral and ethical values who win the el~tions on a positive vote
obtained on their own merit and not by the negative vote of process of
elimination based on comparative demerits of the candidates. It is also D
necessary that the. impact of money power which has eliminated from
electoral contest many men of undoubted availability and credibility for
want of requisite financial support should be able to re-enter the field to
make the people's choice meaningful. This can be achieved only if elections
are contested on a positive vote and the comparison is between the merits
and abilities of the contestants without the influence of power and pelf and E
not between their comparative demerits and the supports of money power.
Apart from the other adverse consequences, the growing influence or
money power has also the effect or promoting criminalisation of politics.
[761-F-G-H; 762-A-B-C]
7.2 The existing law does not measure upto the existing realities. The
ceiling on expenditure is faxed only in respect or the expenditure incurred
F
or authorised by the candidate himself but the expenditure incurred by the
party or anyone else in his election campaign is safely outside the net of
legal sanction. The spirit of the provision suffers violation through the
escape route. The prescription or ceiling on expenditure by a candidate is G
a mere eye-wash and no practical check on election expenses for which it
was enacted to attain a meaningful democracy. This lacuna in the law is,
however, for the parliament to fill lest the impression is reinforced that its
retention is deliberate for . the convenience of everyone. If this be not
feasible, it may be advisable to omit the provision to prevent the resort to H
744
SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R..
A indirect methods for its circumvention and subversion of the law, accept·
ing without any qualm the role of money power in the elections. This
provision has ceased to be even a fig leaf to hide the reality. [762-D-E-F]
7.3 Real education of the electorate contemplates informing them of
the past achievements and future plans of the political party on a positive
B note and its candidate's qualifications to serve that purpose compared
with those of the other political parties and their candidates and not a
projection of the comparative greater demerits of the opponents. The
functioning of democracy depends on the quality of the men chose of the
governance of the country. This is the need which the election campaign is
C meant to serve in an election based on party lines, the qualifications of the
candidates being material for this purpose. (762-H; 763-A·B]
7.4 Past experience had shown that even the illiterate section of the
electorate was educated enough to remain uninfluenced by power and pelf.
D This it had shown more than once, by rejecting the high and the mighty in
power when it felt that they had filed to discharge their true obligation.
Even if the said statements or any of them did not constitute the corrupt
practice u/s.123(4), it only meant that the existing law does not frown upon·
the same to visit it with any adverse consequence, but that does not mean
that it is a desirable practice during the election campaign. It is one thing
E to say that a statement does not constitute corrupt practice but entirely
different to suggest that it is a desirable electoral practice fo~ing a part
of the programme for education of the electorate which can oniy \ead to a
further degeneration of the wanting morality in the electoral scene, when
the felt need is for curbing any such tendency to ensure purity of election&.
F
[763-F-G-H; 764-A·B·CJ
8. The mere fact that the election petitioner secured the next highest
number of votes after the returned candidate was not sufficient to declare
him elected on the conclusion that the election of the returned candidate
was void for commission of a corrupt practice. To justify this relief, it mu!it
G heve been held that but for votes obtained by the returned candidate by the
corrupt practice committed u/s 123(4), the petitioner would have obtained
a majority of the valid votes. The High Court proceeded on an erroneous
assumption that the election of the. returned candidate being void the
petitioner who polled the next highest number of votes must be declared to
have been duly eiected. Relief granted under Section 101(b). of the R.P. Act
H was unwarranted on account of the absence of the requisite evidence to
r
'
'
KANKARRAOv. B.V.PATIL[VERMA,J.]
745
support the grant of this further declaration in the present case.
A
[794-D; 793-E; 794-E]
Ko1111app11 Rudrappa Nadgouda v. Vishwanath Reddy & Anr., [1969)
2 SCR 90, relied on.
9. The scope of an appeal under Sedion 116A of the Representation B
of the People Act is an wide as in a civil appeal, and this court has to
exercise the same jurisdiction as is exercised in an appeal against the
original judgment of the High Court. [765-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2115 of
~
c
From the Judgment and Order dated 30-3-1993 of the Bombay High
Court in Election Petition No. 2 of 1991.,
WITH
CA Nos. 2116/93, 2444/93 and 1758/93.
V.N. Ganpule, Ram Jethmalani, Raja Bhosale, Ashok H. Desai, K.
D
Parasaran, V.R. Manohar, P.P. Rao, V.A. Bobde, Satish K. Agnihotri, Ms.
Punam Kumari, Ms. Lata Krishnamurthy, Ravinder Kumar, Ms. Nandini
Gore, Vasant Kotwal, S.B. Talekar, R.N., Karanjawala, P.K. M1Jiid .. , E
Suruchi Agarwal, Ms. M. Karanjawala, Harsh Desai, Pallav Sisodia, K.K.
Lahir~ P.N. Banerjee, K.J. JohQ, G. Umapathy, P.R. Tiwari, A Raghunath,
Ms. Pragati Shukla, S. Ganesh, A~. Khanwilkar" Viswajit Singh, Prashant
Kumar, E. Iaher, V. Dhoni, V.B'. Mishra, S.B. Mhase, R.F. Nariman, Vijay
Kumar, San''lsh Paul, M.J. Paul and Mrs. V.D. Khanna for the appearing F
parties.
Intervenor in person in C.A. No. 2115/93.
The Judgment of Court was delivered by
VERMA, J. These appeals under Section 116A of the Representation G
of the People Act, 1951 {hereinafter referred to as "the R.P. Act") are
against the judgment dated 30th March, 1993 in Election Petition No. 2 of
1991 E. V. Alia Balasaheb Vikhe Patil v. Gadakh Yashwantrao Kankanao &
Ors., passed by A.A. Halbe, J. of the Bombay High Court at the Aurangabad Bench. By the impugned judgment, the election of Gadakh Y ash- H
746
SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R. ·
A wantrao Kankarrao as a member of the Lok Sabha from 39 Ahmednagar
Parliamentary constituency held in June 1991 has been set aside for commission of the corrupt practice under Section 123(4) of the R.P. Act; and
E.V. Alias Balasaheb Vikhe Patil has been declared elected. Civil Appeal
No. 2115 of 1993 is by Gadakh Yashwantrao Kankarrao (Gadakh) against
B declaration of his election to be void and the further declaration of E.V.
alias Balasaheb Vikhe Patil (Vikhe Patil) to have been duly elected. Civil
Appeal No. 2116of1993 is byDeshmukh Bhagwan Rangnath (Respondent
No. 5 in th~ Election Petition) against declaration of Vikhe Patil to have
been duly elected. Similarly Civil Appeal No. 2444 of 1993 is by Najan
Rambhau Maruti (Respondent No. 6 in the Election Petition) against
C declaration of Vikhe Patil to have been duly elected. Civil Appeal No. 1758
of 1993 is by Sharad Chandra Govindrao Pawar (Sharad Pawar) to whom
a notice under Section 99 of the R.P. Act was issued, against naming him
for commission of the corrupt practice under Section 123( 4) of the R.P.
Act along with the returned candidate Gadakh.
D
E
F
G
The material facts are now stated: Programme for election , of a ·
member for election of a member of the Lok Sabha from 39 Ahmednagar
Parliamentary Constituency known locally as Ahmednagar South constituency was as under :
"l.
Issuance of Nomination papers
From 19th April, 91 to 26th
April, 1991.
2.
Last Date of Acceptance of 26th April, 1991.
Nomination Papers.
3.
Scrutiny and Publication of list of 27th April, 1991
candidates
4.
Withdrawal and Publication of 29th April, 1991
final list of candidates.
5.
Allotment of symbols
29th April, 1991 after 3.00 p.m.
6.
Duration of Propoganda
30th April, to 21st May, 1991.
7.
Date of polling
23rd May, 1991.
8.
Counting of votes and declaration 27th May, 1991
of results."
H HoweVer, due to the assassination of Shri Rajiv Gandhi, former prime
•,.
KANKARRAO v. B.V. PATIL [VERMA, J.]
747
Minister of India on 21st May, 1991, the remaining election programme A
was modified by fixing 12th June. 1991 as the date of polling in that
constituency and 16th June, 1991 for the counting of votes and declaration
of result. For the election from that constituency, the election petitioner
Vikhe Patil, the returned candidate Gadakh, respondent No. 1 and respon-
.