# • "i • • S. HARCHARAN SINGH v. S. SAJJAN SINGH AND ORS - **Citation:** [1985] 2 S.C.R. 159 - **Court:** Supreme Court of India - **Decided:** 1984-11-29 - **Bench:** S. Murtaza Fazal Ali, A. Varadarajan, Sabyasachi Mukharji - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-s-harcharan-singh-v-s-sajjan-singh-and-ors-8799 - **Pages:** 31 ## Headnote 159 R•presentation of the People Act (43 of 1951). s. 123 (3) (as amtnded by Act 40of1961)-Ejfect of amendment-Ev r • • • HAllCltARAN SINGH v. SAJJAN SINGH (Sabyasachi Mukharjf,'J.) 161 about the veracity or the correctness of the evidence adduced on behalf of the appellant as to what happened in the three meetings. The learned Judge accordingly came to the conclusion that the appellant had failed to prove the corrupt practice alleged against respondent No. 3. The learned Judge emphasised that allegations of corrupt practices in an election petition are in the nature of quasi-criminal charges and must be proved beyond reasonable doubt as such. The learned judge was of the opinion that the appellant had not succeeded in proving the said charges beyond reasonable doubt. He accordingly dismissed the said election petition. Being aggrieved by the said decision and judgment of the learned Judge, this appeal has been preferred by the appellant under section l l6A of the said Act . • Before we examine the actual contentions and the evidence, it may be appropriate to bear in mind the principles enunciated in two decisions of this Court on the principle underlying section 123(3) of the Act. Ambika Sharan Singh v. Mahan/ Mahadev and Giri and Others(' was an appeal against the order of the High Court of Patna declaring the appellant's election from Barbara Assembly Constituency, Bihar, void under section 100(1) of the Act. At the time of the general election in February, 1967, the appellant was the Minister of State in the Finance Department of the State of Bihar. There were in all eight candidates contesting from Barbara Constituency. The poll day was 15th February, 1967. Having obtained 21,791 votes against 20,243 votes obtained by respondent No. l, the appellant was declared elected. In the election petition filed by respondent No. 1 thereafter, he made a number of allegations of diverse corrupt practices giving particulars thereof in more than ten schedules. The appellant denied all these allegations and filed a recriminatory petition unc er section 97 of the Act. The High Court after examining the evidence held the appellant guilty of three corrupt practices, namely of distributing money to Harijan voters in various villages as bribery of having canvassed on the basis of his caste, namely, Rajput, and of having procured the assistance of four gazetted officers named (I) [1969) 3 s.c.c. 492. A B D E F G ffil B c D E F G 168 SUPREME COURT REPORTS (1985] 2 S.C.R. therein. We are coDcerned with the second corrupt practice alleged i.e. having canvassed on the basis of his caste. Before this Court, the question involved was whether the High Court was correct in holding the appellant guilty of three corrupt practices. The High Court after considering the evidence held inter a/ia that there was sufficient evi9ence to show that the campaign on the basis of caste was carried on at numerous places and at some places by appellant himself and at some places by others in his presence and at others by several workers of the appellant including his election agent. The High Court felt that the conclusion was inevitable that all this was done with the appellant's consent, direct or implicit. This Court held that the High Court was right in its conclusion and the appellant was proved to have committed corrupt practice falling under section 123(3) of the Act. Dealing with the allegations of appeal in the name of religion, this Court observed at page 497 of the report in paragraph 12 and 13 thus :- "Para 12-Indian leadership has condemned electoral campaigns on the lines of caste and community as being destructive of the country's integration and the concept of secular democracy which is the basis of our Constitution. It is this condemnation which is reflected in Section 123(3) of the Act. lnspite of the repeated condemnation, experience bas shown that where there is such a constituency it has been unfortunately too tempting for a candidate to resist appealing to sectional elements to cast their votes on caste basis. The contention of counsel, however, was that there was on the other hand the danger of a frustrated candidate mustering a number of his followers to testify falsely in a vague manner that his opponent hed campaigned on the basis of his caste or community. fherefore, before such an allegation is accepted, the Court must be on guard against such a possibility and must demand adequate particulars. A witness deposing to snch an alleg•tion must point out when, where and to whom such an appeal was made. That, said counsel, was not done and therefore the evidence of witnesses however numerous should not have been accepted. Para 13-But where the allegation is that such canvasH sing was widespread and at several places it would be • • • ) • . ' ). • • • • l!A~CilAJl.AN SINGI! v. SAlJAN SINGH (Sabyasachi Mukharji, J.) 169 impracticable to call upon the election petitioner to give the name• of persons alleged to have been approached with such an appeal and the actual words spoken to each of them. If such an appeal is made' for instance, at a meeting it would be difficult for a witness to name those to whom such an appeal is made, It is for this reason that courts in England have made a distinction between bribery to voters and treating them. In the latter class of cases, names of persons treated by the candidate have not been demanded though the election petitioner would be ordered to specify the character and extent of the alleged corruption. This is so even though the English Law of elections emphasises the individual aspect of the exercise of undue influence, whereas what is material under our law is the commission of an act which constitutes corrupt practice. (See Halsbury's Laws of England, 3rd ed., Volume 14, p. 278). A command by a religious head to his followers that it was their primary duty to support a particular candidate was held sufficient to vitiate the election and it was not considered necessary to have the names of the persons to whom the command was addressed." In that case before this Court there were other contentions impeaching the evidence and indicating the improbabilities of the case against the appellant. This Court after elaborate discussion came to the conclusion that the allegation of appealing in the name of religion namely appealing on the basis of caste was proved in the facts and circumstauses of that case. It was argued that Barbara constituency was a composite constituency and therefore if the appellant and his agent were to campaign on caste basis, those belonging to other castes would be alienated against him and as sucb an appeal instead of advancing his cause would prove detrimental to it. This Court found this submission to be untenable because it is not impossible that the candidate inclined to campaign on the caste basis would concentrate on his votes and at the same time leave his party propaganda machine to campaign amongst the rest of the population. It would not, therefore, be correct to say that such a campaign would be improbable and therefore evidence that such canvassing was conducted should have been rejected. A B c 0 F G In the instant case before us, similar contentions were urged namel} Muktsar was a mixed constituency namely there were Hindu H A B c D F G 110 SUPREME COURT REPOllTS (I 985] 2 S.C.R. votes and Sikh votes, according to one calculation practically divided equally. It was submitted that appeal in the name of Sikh religion by the appellant in such a situation was unlikely. As mentioned in the aforesaid decision of this Court, ifthere is conclusive evidence to that effect, then such a theory would not outweigh the facts proved. It was, then, submitted that Akali Party was in alliance with C.P.I. (M) and it was most irr.probable that when one of the allied parties was a Marxist Party, the candidate of Akali Dal would appeal in the name of religion. This for the reasons indicated before is also not an acceptable view. These are only probabilities of a situation but if there is direct evidence of propaganda or campaign by candidate in the election in the name of religion, the probabilities of such a campaign not being made in view of other surrounding circumstances, cannot outweigh the direct evidence if the Court is otherwise inclined to accept such direct evidence. Jn Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra and Ors.,(1) the appellant, a candidate of Muslim League defeated respondent No. 3, Shauket Chagla, the Congress candidae in the Maharashtra State Assembly Election. Respondent No. 1, a voter filed an election petition, inter alia, alleging ,that the appellant had appealed to the voters to refrain from voting for respondent No. 2 on the ground of religion and that the appellant had promoted feelings of enmity or hatred between different classes of citizens of India on ground of religion. The various appeals to the voters on the ground of religion made by the appellant had been set out in different sub-paragraphs. It is not necessary to set out in detail the actual allegations made in that case as these were relevant for the purpose of that case only. It may however be pointed out that it was stated about Chagla that "at the moment we are in such a war in which our opponent is such a person who is playing with our religious affairs, he considers us to be a community whose conscience is dead". It was further alleged that Chagla's wife Nalini was a Hindu and his son Ashok Chagla used to attend the mosque as well as the temple and he should be excluded from Muslim localities. It was further alleged that he was neither a good Hindu nor a true Muslim so neither God nor Bhagwan was pleased with him. H (!) [19751 suppl. s.c.R. 2s1. • • • • • r ; j . ' • ...._ __ 'f HARCEtAMN SINGEt v. SAJJAN SINGH (Sabyasachi Mukharji, J.) 111 It was observed by this Court that our Constitution-makers intended to set up a Secular Democratic Republic. Our political history made it particularly necessary that the basis of religion, race, caste, community, culture, creed and language which could generate powerful emotions depriving people of their powers of rational action should not be permitted to be exploited lest the imperative conditions for preservation of democratic freedoms were disturbed. Section 123(2) and (3) and (3A) was enacted to eliminate from the electoral process appeals to those divisive factors which arouse irrational passions that run counter to the basic tenets of our Constitution. Due respect for the religious beliefs and practices, race, creed, culture and language of other citizens is one of the basic postulates of our democratic system. 'The line has to be drawn by the court between what is permissible and what is prohibited after taking into account the facts and circumstances of each case interpreted in the context in which the statements or acts complained of might have been made. The court has to examine the effect of the statements made by the candidate upon the minds and feelings of the ordinary average voters of this country. This Court in that decision reiterated at page 297 of the report as follows:- "The Secular State, ri~ing above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and creeds. Maitland had pointed out that such a state has to ensure, through its laws, that the existence or exercise of a political or civil right or the right or capacity to occupy any office or position under it or to perform any public duty connected with it does not depend upon the profession or practise of any particular religion. Therefore, candidates at an election to legislature which is a part of "the State", cannot be allowed to tell electors that their rivals are unfit to act as their representatives on grounds of their religions professions or practices. To permit such propaganda would be not merely to permit undignified personal attacks on candidates concerned but also to allow assaults on what sustains the basic structure of our Democratic State." A B c D E F G H A 8 c D £ F 112 sUPRBME COURT REPORTS [i 985] Z S.C.R. Keeping in background these principles, it would be necessary to refer to tbe allegations, the evidence and the conclusions of the High Court on this point in order to decide this appeal. It was alleged that Hukamnama was issued by Shri Akal Takht on its official letter-head bearing its religious symbol and seal on !st March, 1980, according to which the working Committee of the Akali Dal was dissolved and a 7-member Ad-hoc Committee was appointed under the Chairmanship of Sant Harchand Singh Longowal which was conferred with the full powers of Akali Dal. Shri Akal Takht is sitnated within the precincts of Harmandir Sahib (Golden Temple). Guru Granth Sahib installed in Harmandir Sahib is brought every day late in the evening to Shri Akal Takht for sukh Asan. Another Hukamnama, dated 6th October, 1979 was issued. Said Hukamnama which is Exh. P and appears at pages 17 and 18 of Part II of the Paper Book stated that in view of the resignations tendered to the Jathedar of Sri Akal Takht, on 27th September, 1979, certain decisions were taken. It further stated in one of the items that in view of the coming Parliamentary elections and the unity of the panth and its high priests, after scrutinising the list of the delegates, they would in their supervision conduct the el~tion of the President of Shiromani Akali Dal. It was publicised to the entire Sikh community that Shiromani Akali Dal should be considered as Supreme in the Panth. It further stated that the legislators elected on the Panth ticket were being instructed to run the Punjab Government unitedly under the leadership of Sardar Parkash Singh Badal, the Chief Minister and maintain the prestige of the Panth. It was further stated that all the members of the Shiromani Committee will have to work unitadly under the leadership of Jathedar Gurcharan Singh Tohra, for the betterment of manage· ment of gurdwaras and to speed up the preachings of Sikhism. The said document fmther stated that a seven member committee was being constituted for distribution of tickets and adjustments with other parties in the coming Lok Sabha elections. The names G of seven members were given which included Sant Harchand Singh Ji Longowal, S. Jagdcv Singh Ji Talwandi, S. Parkash Singh Ji Badal and others. Sant Harchand Sini:h Ji Longowal was appointed as Chairman of the Committee. It further stipulated that the Sikh, who defied the proprity of Akal Takht and offers 'Ardas' , would be punished. He should present himself at Sri Akal Takht and get himself absolved and further directed that persons opposing the above decision, made for maintaining the unity of the ti Panth, would be dealt with severely. It is further alleged that on • • • • • 1 J -1- • • • HARCHARAN SINGH v. SAJJAN SINGH (Sabyasachi Mukharji, J.) 173 16th November, 1979, Hukamnama was issued by Akal Takht on its official Jetter-head with religious symbol and seal wherein punishment was imphsed by Akal Takht on Jathedar Jagdev Singh Talwandi and Jathedar Umra Nangal. These appear as Exh. P2 at pages 19 and 20 of Part II of the Paper Book. A On 29th February, 1980, a letter was written which is Exh. B p.3 and appears at page 21 of Part II of the Paper Book. This letter contains the proposal of some leaders of Aka\i Party about the formation of seven Member Ad-hoc Committee and disbandinii of the Working Committee of the Akali Dal. On 1st March, 1980 Hukamnama which is Exh. P-4 at page 22 of Part II of the Paper Book was alleged to have been issued by Akal Tal:ht on its official c letter-head b~aring its religious symbol and seal. This Hukamnama gives approval to the aforesaid proposal and made an official announcement that the seven Member Ad-hoc Committee would from that date take upon all the respon~ibilities of the Shiromani Akali Dal. Respondent No. 3 states in his evidonce that he was not originally a candidate of Akali Dal but his candidature was taken up at a subsequent stage and he was given a ticket by the sevenmember comittee to contest the election. This is corroborated by Exh. P-29/ A because 2nd May, 1980 was the last date for submitting nomination, and on 3rd May, 1980, respondent No. 3 was given ticket by !hi seven-Member Ad-hoc Committee for Muktsar Constituency. See pages 90·92 of Part III of the Paper Book being the statement of Dayal Singh. Shri Dayal Singh gave evidence on behalf of the appellant and he claims to be the Secretary of Aka\i Dal of which the President was Jagdev Singh Talwandi. According to him Harchand Singh's name was included in the list Exh. P.W. 29/ A and not Exh. P-4/1. On 5th May, 1980 the last date for withdrawal of candidature expired. On 14th May, 1980, election meeting was addressed in village Thandwala by S. Parkash Singh Badal, a member of the seven Member Ad-hoc Committee appointed by the Akal Takht and by respondent No. 3, the elected candidate. There were articles in Akali Times by Surjit Singh, Chief Editor on 16th May, 1980. These articles were to the effect that it was a religious commitment for every Sikh to cast his vote for Akali Dal or to the candidate supported by the Akali Dal. Qne of the statements in the article . . ' ' . .. . . . . . . E F G A B 0 D E F G 174 SUPREME COURT REPORTS [1985] 2 S.C.R. was !hat Indira Congress was an anti-Sikh organisation. On 18th May, 1980, it was further stated in the said Akali Times that a Sikh cannot be supporter of that organisation and to have commitment with the Congress was a sin against Sikh Community's interest. In view of the nature of the points urged in this appeal, it would be appropriate to refer to some portions of the writings in Akali Times which were alleged to have been highlighted at several election meetings by respondent No. 3. One of the articles is Annexure P-5 which appears at page 23 of Part II of the Paper Book. It is beaded thus "A Supporter of Indira Congress (I) cannot be a Sikh". It is stated inter alia: "It becomes a religious commitment for every Sikh to treat his vote a property of the Akali Dal and should stick to it by all means. To be a Sikh, is to adhere to the Guru.