# RAHIM KHAN v. KHURSHID AHMED & ORS

- **Citation:** [1975] 1 S.C.R. 643
- **Court:** Supreme Court of India
- **Decided:** 1974-08-08
- **Case number:** Civil Appeal No. 816 of 1973
- **Bench:** D. G. Palekar, P. N. Bhagwati, V. R. Krishna Iyer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rahim-khan-v-khurshid-ahmed-ors-6214
- **Pages:** 30

## Headnote

The Representation of the People Act (43 of 1951) ss. 83, 84, 99(a) (ii), 116A and
123(1) to (4)-Scope of Court's power to set aside election-Appellate Court's power
to upset findings of trial Court-Bribery, ingredients-Divine displeasure and undue
influence-Court's attitude to-Names of witnesses if should be mentioned in sources
of information or as part of particulars. Appeal to religion what is-Duty of trial
Court to name those found to have indulged in corrupt practices-Reform of election
law to check contemporaneous corrupt practices suggested.
In the General Election to a State Assembly held from a constituency where· the
voting strength of Muslims was preponderant, the appeIJant was declared elected.
The first respondent, who was a sitting minister before his defeat, challenged the
election on various grounds of corrupt practices. The High Court set aside the
appellant's election h~lding that he committed 4?0rrupt pr~tices under s. 123(1) to
(4) of the Representation of the People Act, 1951. The High Court found (i) that
the appellant placed at the disposal of another conte~ting candidate a car with a
promise that the expenses incurred in hiring and running it in connection with his
election campaign would be met by the appellant, so that, he may continue to contest
the election and wean a~
1ay the Harija1.1 vo~es from the first respondent; and (ii
that the appellant, and his supporters with his consent, delivered speeches appealing
to the Muslim voters to vote for the appellant because he was a true Muslim while the
first respondent was a Kafir ; that they distribut~d handbills containing the allegations that (a) the first respondent, though a Mushm got the grave of another Muslim
dug up on account of personal enmity; (b) as health minister he violated the mOdesty of lady doctors and nurses; (c) he got certain Muslims arrested on allegcrtions
of cow slaughter and forced them to eat pork; and (d) if the voters voted for the first
respondent they would become subject to divine displeasure.
Dismissing the appeal to this Court,
HELD :-(1) An appeal is a re-hearing but the trial Court's finding will be
upset only when it is found that it is wrong. [647 BJ
Laxminarayan v. Returning Officer, A.I.R. 1974 S.C. 66, 78, Karemore's Case,
A.l.R. 1974 S.C. 405, 413, 420 followed.
(2) After an election had been held defeated candidates or disgruntled electors
should not be allowed to treat it in a light-hearted manner by filing election petitions
on unsubstantial grounds and irresponsible evidence. Courts must respect the verdict rendered by the electorate and show extreme reluctance to set it aside or dedare
it void unless clear and cogent testimony, compelling the court to uphold the corrupt
practice alleged against the returned candidate, is adduced. Further, where corrupt
practices are imputed the proceedings are of a quasi-criminal nature where strict
proof is necessary and the burden is heavy on him who assails the election. In
cases where the ¥.itnesses are partisans, being the polling agents or counting agents
or workers of the candidates ; or of the turn coat type, who claimed to be the
polling
agents counting agents or workers of the returned candidate till the election was
over but in the post·election period, when the defeated candidate's party had formed
a go~~ent, shifted.their loy~ty and gav~ ~viden~e. in.proof Of the averments in
the petition ; or officials working un~er sitting Mmtstnes who are candidates for
election, the Court must scan the ev14ence of the corrupt practices alleged with
scrupulous care and severity. [650 E-H, 655 F-HJ
H
(3) The corrupt practice of bribery unders. 123(1) by placing a carat the disposal
of another candidate, is not proved. Assuming _that such candidate got the use of
a car at the expense of the appelJant such financial aid would not amount to corrupt
practice unless it was to induce t~at candidate not to withdr«»? from the. election.
644
SUPREME COURT REPORTS
[1975] 1 S.C.R.
In the

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643
RAHIM KHAN
v.
KHURSHID AHMED & ORS.
August 8, 1974
[D. G. PALEKAR, P. N. BHAGWATI AND V. R. KRISHNA IYER, JJ.]
The Representation of the People Act (43 of 1951) ss. 83, 84, 99(a) (ii), 116A and
123(1) to (4)-Scope of Court's power to set aside election-Appellate Court's power
to upset findings of trial Court-Bribery, ingredients-Divine displeasure and undue
influence-Court's attitude to-Names of witnesses if should be mentioned in sources
of information or as part of particulars. Appeal to religion what is-Duty of trial
Court to name those found to have indulged in corrupt practices-Reform of election
law to check contemporaneous corrupt practices suggested.
In the General Election to a State Assembly held from a constituency where· the
voting strength of Muslims was preponderant, the appeIJant was declared elected.
The first respondent, who was a sitting minister before his defeat, challenged the
election on various grounds of corrupt practices. The High Court set aside the
appellant's election h~lding that he committed 4?0rrupt pr~tices under s. 123(1) to
(4) of the Representation of the People Act, 1951. The High Court found (i) that
the appellant placed at the disposal of another conte~ting candidate a car with a
promise that the expenses incurred in hiring and running it in connection with his
election campaign would be met by the appellant, so that, he may continue to contest
the election and wean a~
1ay the Harija1.1 vo~es from the first respondent; and (ii
that the appellant, and his supporters with his consent, delivered speeches appealing
to the Muslim voters to vote for the appellant because he was a true Muslim while the
first respondent was a Kafir ; that they distribut~d handbills containing the allegations that (a) the first respondent, though a Mushm got the grave of another Muslim
dug up on account of personal enmity; (b) as health minister he violated the mOdesty of lady doctors and nurses; (c) he got certain Muslims arrested on allegcrtions
of cow slaughter and forced them to eat pork; and (d) if the voters voted for the first
respondent they would become subject to divine displeasure.
Dismissing the appeal to this Court,
HELD :-(1) An appeal is a re-hearing but the trial Court's finding will be
upset only when it is found that it is wrong. [647 BJ
Laxminarayan v. Returning Officer, A.I.R. 1974 S.C. 66, 78, Karemore's Case,
A.l.R. 1974 S.C. 405, 413, 420 followed.
(2) After an election had been held defeated candidates or disgruntled electors
should not be allowed to treat it in a light-hearted manner by filing election petitions
on unsubstantial grounds and irresponsible evidence. Courts must respect the verdict rendered by the electorate and show extreme reluctance to set it aside or dedare
it void unless clear and cogent testimony, compelling the court to uphold the corrupt
practice alleged against the returned candidate, is adduced. Further, where corrupt
practices are imputed the proceedings are of a quasi-criminal nature where strict
proof is necessary and the burden is heavy on him who assails the election. In
cases where the ¥.itnesses are partisans, being the polling agents or counting agents
or workers of the candidates ; or of the turn coat type, who claimed to be the
polling
agents counting agents or workers of the returned candidate till the election was
over but in the post·election period, when the defeated candidate's party had formed
a go~~ent, shifted.their loy~ty and gav~ ~viden~e. in.proof Of the averments in
the petition ; or officials working un~er sitting Mmtstnes who are candidates for
election, the Court must scan the ev14ence of the corrupt practices alleged with
scrupulous care and severity. [650 E-H, 655 F-HJ
H
(3) The corrupt practice of bribery unders. 123(1) by placing a carat the disposal
of another candidate, is not proved. Assuming _that such candidate got the use of
a car at the expense of the appelJant such financial aid would not amount to corrupt
practice unless it was to induce t~at candidate not to withdr«»? from the. election.
644
SUPREME COURT REPORTS
[1975] 1 S.C.R.
In the present case, there is no proof on this aspect and there is no finding to that
effect by the High Court. [652 H, 654 B-C]
(4) Divine displeasure on account of prandial impropriety and undue influence
for fear of forced pork eating, cannot be inferred from the allegations in the handbill.
No one in India \o-day will shiver with fear that a candidate, when he wins an
election, will force down his throat distasteful pork. Such chimerical apprehensions
are unreal and cannot receive judicial approval. Therefore, the Corrupt practiee
alleged under s. 123(2) is not proved. [669 F-HJ
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(5) But the hand bills exhort Muslims to support the appellant in the name of
religion and contain allegations amounting to character assassination and so, the
appellant is guilty of the corrupt practices under s. 123 (3) and (4). [610 A-BJ
(a) There is no credible proof that speeches had been made by the appellant o
his supporters at meetings. [655-C-FJ
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(b) But on the distribution of the damaging handbills there is acceptable, direct
and circumstantial testimo;ny. The appellant had a motive for publishing the
handbills and there is evidence to show that the handbills existed at the relevant time.
The circumstances of the case and the evidence of disinterested witnesses show that
hand bills wore distributed with the knowledge and consent of the appellan~ [668F-H]
(c) Neither s. 87 nor s.83 nor r. 94(a) and Form 25 require that the names of the
witnesses should be mentioned as sources of information or as part of particulars.
Rule 12 framed by the High Court for the trial of election petitions requires the
source of information to be mentioned at the e;irlier stage in order to prevent afterthoughts. But, every witness need not be mentioned as a source and every saurce
informant need not be examined necessarily. Whether the omission to do so in a
given case reflects on the credibility of the evidence depends on the facts and circumstances of the case. While the court must be careful to insist that the means of knowledge are mentioned right in the beginning to avoid convenient embellishments and
irresponsible charges, it should not stifle good and reliable testimony or thwart proof
of corrupt practices by technicalities of procedure, especially when no prejudice, on
account of deficiency in particulars, is made out. [664 C-E, F-GJ
( d) What is appeal to religion depends on time and circumstances, the ethos of
a community, the bearing of the deviation on the cardinal tenets of the eligion and
other variables. Law being a secular social process, the Court must avoid over
solicitude for ultra-orthodoxies. [660 A-B, D-EJ
(e) Since the first respondent has called the various
allegations relating to
womanizing as false and the appellant has agreed that he does not believe them to
be
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true, the corrupt practice under s. 123(4) must be held to have been made
out.
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[669 F]
Ambika Saran Singh v. Mahant Mahadev Nand Giri 41 E.L.R. 183. Ku/tar Singh
v. Muichtiar Singh,
[1964J 7 S.C.R. 790, Ba/wan Singh v. Lakshmi Narain, 22.
E.L.R. 273, B. Rajagopa/a Rao v. N. G. Ranga, A.LR. 1971 S.C. 267, 275 ;
referred to.
(6) If a blatant corrupt practice is committed during an election 1Jtere is now no
clear statutory mechanism which can contemporaneously be set in motion by the
affected party, so that, when it is raw, a record and an instant summary pro9e is
possible through an independent semi-judicial instrumentality. Violations thrive
where prompt check is unavailable. Effective contemporaneous machinery providing for such checks would greatly curtail subsequent
election disputes and
even act as a deterrent to the commission of corrupt practices. Elections are the
cornerstone of the parliamentary system and electoral purity can be maintained only
when the virus of corrupt practices is controlled by comprehensive systematic changes
in law with emphasis on a fearless enforcement instrumentality and a national political consensus to abide by norms. [670 D-F, 672 A-BJ
In the present cue, the handbill does not contain the name of the printer and
publisher although the election law so required. There is no agency to take prompt
action after due inTeotisatioa, and a propagandist is able SUCCC6Sfully to spread
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RAHIM v. KHURSHID (Krishna Iyer, !.)
645
scandal without a trace of the source, knowing that nothing will happen until long
after the election the question is raised in an election petition. [665 F-G]
(7) The High Court having found the commission of corrupt practices by the
appellant and one of his supporters, who is a sitting member of Parliament, and a
large number of other persons, was under the statutory duty to name all those who
have been proved at the trial to have been guilty of corrupt practices, under s. 99(a)
(ii) after following the prescribed procedure. If only courts would name all those
involved in the pollution of the electoraJ process, there would be some hesitation on
their part to indulge in such improper practices. No such action is however necessary by this Court in the present case, because this Court found only the appellant
guilty of corrupt practice. [670 F-671 H]
D. P. Mishra v. K. N. Sharma [1971] S.C.R. 8 ; R. M. Seshadri v. G. Vasantha
Pai. [1969] 2 S.C.R. 1019, and Janak Sritar v. Mahan/ R. K. Das, A.l.R. 1972 S.C.
359, referred to.
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CIVIL APPELLATE JURISDICTION : Civil
Appeal No. 816 of
1973.
(Appeal under Section 116-A of the Representation of People
Act, 1951 from the Judgment and Order dated the 12th March, 1973
of the Punjab and Haryana High Court at Chandigarh in Election
Petition No. 7 of 1972.)
N. S. Bindra, R. H. Dhebar, B. S. Malik, P. R. Ramasesh and R.C.
Bhatia, for the Appellant.
K. C. Sharma, K. C. Agarwal, M.M.L. Srivastava, E. C. Agarwala
and Prem Malhotra, for Respondent No. I.
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K. L. Hathi, and P.C. Kapur, for Respondent No. 2.
A.T.M. Sampath, for Respondent No. 3.
S. K. Bagga and S. Bagga, for Respondent No. 4.
The Judgment of the Court was delivered byKRJSHNA IYER, J.-By a plurality of less than 2,000 votes the appellant was declared elected from the Nuh constituency to the Haryana
Assembly in the general election held on March fl, 1972. He was an
Independent candidate while his main rival, the first respondent, represented the Indian National Congress. There were three others in
the field two of whom were Independents and the third a Jan Sangh
nominee-all of them polled poorly. In the electoral history of the
constituency fickle fortune has been smiling now on the appellant,
now on the first respondent. It also happens that while the appellant
had been a Deputy Minister when he was elected to the Haryana Legislative Assembly.last from ihe same constituency in 1967, at tlie following general election in May 1968 to the same Assembly (before its term
the Assembly was dissolved and the non-Congress Government went
out of office) the first respondent was elected and he became a Member
of the Cabinet formed by the Congress party.
The next election fell
in 1972 where both figured as combatants from Nuh and we are
concerned with the validity of the result declared in favour of the appel9-185 SClj75
646
SUPREME COURT REPORTS
[1975] 1 S.C.R.
!ant by the returning officer in the present appeal, the High Court
having set aside the election.
It is apparent that the competitive politics of the Nuh constituency
has expressed itself through the appellant and the first respondent
for quite a long time now and as the voting figures of the latest poll
shows, the context has been contentious and close. In such battles
of the ballot where personal feuds foul the air, the decencies and
norms set by the law may often be the first casualty. Anyway, the
disappointed first respondent hastened to challenge the appellant's
election on various grounds of "currupt practices". The High Court
has upheld a few of them and voided the appellant's election, a miss
being as good as a mile. The campaign pollutants must be kept down
at the polls if electoral disenchantment is not to grip the general community. The Conrt, in this regard, is the sentinel on the qui vive.
Shri Bindra, learned cause] for the appellant, has argued the case
in minute detail, countered by Shri Sharma for the first respondent ;
but since at the appellate level jejune infirmities and probative trivialities may not tilt the scales even on the principle of juncta juvant, we
will focus largely on the major circumstances. The correct appellate
perspective in an election case has been indicated by this Court and we
are bound to set our sights on those lines. In Laxminarayan v. Returning Officer(!) the implied limitations on the appellate power under
s. 116A were stated thus :
"It can re-appraise the evidence and reverse the trial court's
findings of fact.
But like any other power it is not unconfined;
it is subject to certain inherent limitations in relation to a
conclusion of fact. While the trial court has not only read the
evidence of witnesses on record but has also read their evidence
in their faces, looks and demeanour, the appellate Court is confined to their evidence on record
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In an appeal the burden is on the aE_pellant to prove how the
judgment under appeal is wrong. To establish this he must do
something more than merely ask for a reassessment of the
evidence. He must show wherein the assessment has gone wrong".
Jn Karemore' s Case(2) this position was re-stated thus:
"Before a finding offact by a Trial Court can be set aside it
must be established that the Trial Judge's findings were clearly
unsound, perverse or have been based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies. This is not to say that a Trial Judge can be treated
as infallible in determining which side is indulging in falsehoods
or exaggerations ....
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While, as we have said earlier, it is open to this Court to
reappraise the evidence and consider the propriety, correctness
(1) A.I.R. 1974 S.C. 66, 78.
(2) A.l.R. 1974 S.C. 405, 413, 420.
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RAHIM v. KHURSHID (Krishn11 Iyer, !.)
647
or legality of the findings recorded by the Trial Court
ordinarily it will be slow to disturb the findings of fact
recorded by the High Court unless there are cogent reasons
to do so."
An appeal is a re-hearing but the trial Court's finding will be upturned
not when it is short of right but only when it is wrong. We will view
the case from this angle.
In a loose sense, Nuh is a Muslim constituency by which we mean
that
the voting strength of the Muslims is preponderant. Both
the candidates are Muslims and, indeed, to some extent the Islamic
"dosage" of each candidate
has
itself been highlighted in the
Election Petition as a bone of contention in the poll confrontation, as
will be presently discussed. Had parties professing secular politics
and revolutionary ideologies never "stooped to conquer" by sub rosa
appeal to the religion and caste of blocks of voters by exciting their
sympathy for the candidate via this sense of "tribal" identity, onr
elections would long ago have lived down this injurious political
irrelevance. On the contrary, the unerring instinct with which political
parties frequently choose candidates whose religion or caste tallies
with that of the bulk of the constituents appetises, if not excites, covertly,
if not overtly, the caste consciousness and religious separatism
otherwise asleep in the bosoms of the common people. In the name
of pragmatism many parties offer allegiance to the super-partyCaste and the Jaw (Secs. !23 & 125) fails operationally because the
societal mores are not being seriously secularised by big Parties. What
is surprising is that the die-hard sense of caste has affected not merely
the Hindu heirarhcy but also the Muslim Brotherhood and the evidence
in the present case reveal that Gote (gothra or clan) is a binding force
socialiy and electorally among Muslims here. Exploitation of this
susceptibility is suggested again! the appellant.
The first respondent, in his petition, has imputed many types of
corrupt practices to the returned candidate. Paragraph 8 of the
petition sets outtheracts about bribery. The next paragraph furnishes
the particulars of appeal by the returned candidate and/or his election
agent and by others with their consent, to vote for the appellant on
grounds of religion and caste and to refrain from voting for the first
respondent on the score that he violated Islamic tenets and was in fact
a kafir. The gravamen of the vices flung at the appellant is that he
and others with his consent did broadcast to their constituents orally
and in writing personal aspersions about the first respondent, calculated to darken his poll prospects. Undue inflnence by invocation
of divine displeasure by dietary deviation is also alleged, based on the
potential threat, if respondent were returned of the pious Muslims
being forced to eat pork-a· prandial anathema for true Muslims.
'.'lot all of t.hese grounds have been held proved and the appellate
subject-matter 1s confined to that part of the canvas where findings of
corrupt practice have been recorded. We will switch the forensic
spotlight only on them. The High Court has wound up thus:
648
SUPREME COURT REPORTS
[1975] 1 S.C.R.
"My conclusions from the evidence discussed under this issue
may be summed up as follows:
(a) Handbill Exhibit P.W. 4/3 was in existence before the 12th
of March, 1972.
(b) The returned candidate supplied copies of the handbill
to his _agents and workers for distribution amongst Muslim voters.
(c) The returned candidate and his supporters with his consent, made an appeal to Muslim voters to vote for the returned
candidate because he was a true Muslim whereas the petitioner was a kafir. This appeal was made on the 9th and I 0th
of March, 1972, through speeches delivered by the returned
candidate and his supporters and by distribution of handbill Exhibit P. W. 4/3, in_ the following villages of the
Nuh Assembly constituency:
Notl<i Gohana, Khedli Nuh, Mewli, Malab, Nagina,
Karherrha, Pinangwan, Bhad_as and Ghagas.
It is conceded before me that the appeal just above found by
me to have been made by the returned candidate was an appeal
to vote for the returned candidate and to refrain from voting for
the petitioner on the ground of their religion, for the furtherance
of the prospects of the election of the returned candidate and
for prejudicially affecting the election of the petitioner so that it
falls within the ambit of the corrupt practice detailed in section
123 (3) of the Act, which corrupt practice the returned
candidate must be held to have committed. The issue is
accordinglyfoundinfavour of the petitioner."
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"From the evidence accepted by me as trustworthy under that
issue it is further made out that practically all those statements
with slight variations were made the subject-matter of speeches
by the returned candidate and, with his consent, by Shri
Tayyab Hussain, which speeches were delivered to gatherings
in the said ten villages. The publication of those statements by
the returned candidate and by Shri Tayyab Hussain, with his
consent thus stands fully proved. The petitioner has sworn
as P. W. 76 that all the statements contained in the handbill are
false. Thus assertion stands wholly unrebutted.
Appearing
as R.J.W. 37 the returned candidate averred that according to
his belief the statements made in the handbill were incorrect.
This being so, all the ingredients of the corrupt practice under
examination must be held to have been fully brought home
to the returned candidate" .
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I have already held under issue No. 4 that as claimed by
petitioner handbill Exhibit P. W. 4/3 was distributed amongst
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voters by the returned candidate and his supporters with his
consent. So the only question which remains to be answered is
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RAHD\'.! v. KHURSHID (Krishnp, Iyer, !.)
whether the publication of the statements above extracted
amounted to any direct or indirect interference or attempt
to interfere with the free exercise of any electoral right. In my
opinion, this question must be answered in the affirmative.
According to the Muslim faith, eating of pork is considered
sinful. The impugned statements declared in no uncertain terms
that ifthe petitioner was elected, he would force all Muslims to
eat pork. The effect of those statements on the mind of an
average Muslim voter would be so powerful as to leave no free
will to him in the exercise of his choice of the candidate for
whom he was to vote. The inducement would result in a mental
compulsion for the voter to vote for the petitioner and would,
therefore, fall within the ambit of any attempt to interfere with
the free exercise of an electoral right."
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" .... the publication of the impugned statements contained
in handbill Exhibit P. W. 4/3 amounted to the commission of
the corrupt practice of undue influence as defined in section
123(2) of the Act."
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"Having found that the returned candidate and others
with his consent committed the corrupt practice defined in
clauses(!), (2), (3) and (4) of section 123 of the Act, I accept
the petition and declare the election of the returned candidate
to the Haryana Legislative Assembly from the Nuh Assembly
constituency to be void."
649
The cornerstone of the election petition is the destribution of libellous handbills and making of slanderous speeches by the candidate
and his companions which overflowed mere personal invective into
many areas of corrupt practice. The Court was also satisfied with
part of the charge of bribery which it expressed thus :
"As a result of the above discussion I find it proved that on
the 14th of February 1972, the returned candidate placed at the
disposal of respondent No. 3 Car No. DLF 675 with a promise
that these expense incurred in hiring the car and running it in
connection with the election campaign of respondent No. 3 ·
would be met by the returned candidate."
Thus it is seen that while the embittered petitioner has black-brushed
his rival with many brands of corrupt practices, he has failed to convince the Court on several of them. His counsel gave up many of the
charges after evidence had been led. Even the residue has not fully
found favour with the High Court and the only substantial grounds
which have survived the screening process are two, viz : (a) the 'automobile' bribe; and (b) the dissemination of prejudicial and prohibited
appeals. The limited controversy before us centres round the certitude of this fatal modicum. The election law invalidates a poll verdict
if a single i!legal adulterant has been admixed in the campaign. The
law is jealously qualitative, not clumsily quantitative, in its nullification
test and two vices or twenty are the same in the ultimate result.
650
SUPREME COURT REPORTS
( 197 5] l S.C.R.
A few prefatory observations are necessary before we discnss the
·evidence, apply the Jaw and reach our conclusions. It is of the first
importance that electionS-l)lUSt be free and fair if the democratic system
is not to founder. Not long ago a Chief Justice of this Court, delivering
the Lajpatrai Memorial Lecture, observed:
"Untruths before elections, during elections and after
elections seem to be too prevalent for a healthy political society."
He also tartly remarked in that speech:
"There is always a danger of the failure of democracy.
'Remember', said John Adams, 'remember, democracy never
lasts long. It soon wastes, exhausts and murders itself. There
never was a democracy that did not commit suicide. We must
realise that this is entirely true."
The Court is the conscience-keeper of the constituency, as it were,
in the maintenance of the purity of elections to the extent they are
litigated in Court. Shah, J., in Harcharan Singh's Case(!) observed :
"The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the
purity of the election process, and the Courts will not ordinarily
minimise their operation."
We have therefore to insist that corrupt practices, such as are alleged
in this case, are examined in the light of the evidence with scrupulous
care and merciless severity.
However, we have to remember another factor. An election once
held is not to be treated in a light-hearted manner and defeated candidates or disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence,
thereby introducing a serious element of uncertainty in the verdict
already rendered by the electorate. An election is a politically sacred
public act, not of one person or of one official, but of the collective will
of the whole constituency. Courts naturally must respect this public
expression secretly written and show extreme reluctance to set aside
or declare void an election which has already been held unless clear
and cogent testimony compelling the Court to uphold the corrupt
practice alleged against the returned candidate is adduced. Indeed
election petitions where corrupt practices are imputed must be regarded as proceedings of a quasi-criminal nature wherein strict proof
is necessary. The burden is therefore heavy on him who assails an
election which has been concluded.
There are many who are cynical about the enforcement of the
election Jaw, which is too moral for the pragmatic skills of the politicians when locked in pitched battles. They regard these vices as
(1) [1969] 1 SCA 138, 145.
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RAHIM v. KHURSHID (Krishna. Iyer, !.)
65 l
inevitable and therefore remain indifferent to their prevalence. Sydney
Harris' statement in this context is apposite :
"Once we assuage our conscience by calling something a
'necessary evil', it begins to look more and more necessary and
less and less evil."
For this very reason the Court has to be stern so as to induce in the
candidates, the parties and workers that temper and truthfulness so
appropriate to the process and not bewail, as the Report of the Fifth
General Election in India (1971-72, issued by the Election Commission)
does (at p. 198 thereof) :
"But how can we expect that elections will be absolutely and
totally corruption-free when the whole country in every sphere
and department of life and activity is plunged in the ocean of
corruption ? It is everybody's complaint that there is no business,
trade or industry where black-marketing or bribery is not pracctised .... Remove corruption in general and corruption in election will be a thing of the past."
The charge of bribery has been made in this case in a peculiar
setting and has been held proved in part by the learned Judge. Before
going into the principal skein of corrupt practices wound round the
alleged propaganda, oral and documentary, we may dispose of the
lesser but equally lethal episode of bribe-giving. A glance at the
communal composition of the constituency and its behavioral pattern
is necessary to appreciate this ground covered by issue I. No part of
Indian geography is a religious monolith and Nuh is no exception to
this social diversity and communal mix. The majority are Meo-muslims
(converts from Rajputs carrying their caste and gothra memory into
their Islamic genetic code and observing in life the clan habit) but
there are also Hindus including Harijans. The Harijans, according
to the petitioner, traditionally vote for the Congress except when lured
away by a fellow Harijan figuring as candidate. To wean away Harijans from the Congress ballots was very much to the appellant's interest and so the petition alleged, he exploited their communal pathology by setting up Sohanlal, Respondent 3, as a ghost candidatenot to win but to defeat.
Human homogenisation in elections, breaking down religious
barriers, is social heroism unaccomplished even in the communal
pluralism of the U.S.A. and the U. K. although it is exaggerated by
tradition in India and hurts it more, being a developing country. The
political pity is that the secular and social objectives of our Constitutional order are obfuscated by a system of mass electoral participation where separate electorates, written with the invisible ink of life,
are partially perpetuated by political leaderships bent on short-cu ts
to power. The law should so deve.lop as to dis-ind;ice col11!11unaJ-religious appeal by the cryp.to-caste1sm . of the cand1~ture itself. We
say this not as a strange evil of our society but as an madequacy of our
election life and law. Newton D. Baker observes about the U. S.
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SUPREME COURT REPORTS
[1975] 1 S.C.R.
situation while considering the harm of a switch-over to proportional
representation :
"We have groups of all sorts and kinds formed around religious,
racial, language, social and other contentious distinctions.
Proportional representation invites these groups to seek to
harden and intensify their differences by bringing them into
political action where they are irrelevant, if not disturbing. A
wise election system would invite them to forget these distracting prejudices."
The 1st respondent's case is that the appellant persuaded a financially
incompetent Sohanlal-respondent No. 3-to stand as candidate
over-ruling his reluctance by offer of Rs. 125 and promise of footing his
campaign bill, in a bid to skin away the Harijan pro-Congress votes.
This was on February 9, 1972. Since the lower Court has rejected
this episode, we too ignore it. But the official date for withdrawal,
February 14, found the hesitant Sohanlal hovering around retirement
from an expensive context. The !st respondent's story is that the
appellant gave a shot in the arm by proffer of Rs. 1,000 and a car for
use till the election was over. This stroke of bribery continued the
Harijan candidate in the arena. The finale of this shady chapter,
disbelieved by the Court, is that a couple of days before the actual
poll the appellant purchased Sohanlal's retirement and exhortation to
his followers to support the appellant .at a price of Rs. 2,000 paid on
March JO, 1972. This facet of the case has been eliminated at the High
Court level and need not detain us. The narrow point that survives
for our scrutiny as to whether the appellant did commit the corrupt
practice under s. 123(1) of the Representation of People Act, 1951
(the Act , for short), by placing at the disposal of candidate Respondent 3, car D.L.F. 675 and promising him the hire charges and running
expenses thereof with a view to his continuance as candidate, the
ultimate gain being the seduction of the Harijan electors away from
the Congress candidate
It is not necessary toe xamine whether the evidence justifies the
finding that Sohanlal got the use of a car at the expense of the appellant. we will assume that is so. But it is not every help by a candidate
to a fellow candidate that constitutes corrupt practice. Such financial aid must be to induce the latter not to withdraw from the e1ection.
May be, a candidate may wish to fight but do it so bloodlessly
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that he
may · not
reach his potential supporters and if his
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effective canvassing is in the interests of another candidate (the
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electoral chemistry has many actions and reactions) then the latter
may invigorate his campaigning with funds or aid in kind, not for
non-withdrawal but for full-blooded electioneering. To jack up is
l
different from preventing a jump down. This is not a corrupt practice
under the law and so the key question is not whether a car was provided
but whether the provision of the car was to prod the candidate not to
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withdraw. A close-up of the evidence on this significant facet leaves
us in serious doubt about the sufficiency and reliability of the proof.
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RAHIM v. KHURSHID (Krishn11< Iyer, !.)
653
From the evidence in this case it looks as if Sohanlal, the third
respondent, is an indigent person and handicapped by social backwardness. Nevertheless he is needed as a magnet to polarise all Harijan votes away from the cow and calf symbol. It is a worthwhile re·
flection on the Sohanlal drama that in order to invest elections
with equality of opportunity in a country of poverty, inexpensiveness must be stamped on the campaigning process. This may
be attempted in many ways by adapting to Indian conditions experiences
elsewhere. But the present methodology of fixing up candidates at
the last minute as a product of many pressures makes for more inputs
than consultation with the community in the concerned area, a sort
of informal "primary" and announcement of the choice will ahead for
the constituency to know and understand the
candidate likewise
if Party cadres work constructively and continuously for solution of
peoples' grievances instead of going into election-eve campaigning with
all the sound and fury of hectic pre-poll duel to win votes, the project
will cost less and vote-catc;hing strategems will yield poor pay off.
Large pecuniary lay-out in the business of power politics must be
arrested if the system is not to sink. Today, the average Harijan, like
Sohanlal, has as much chance of winning an election as a camel has of
passing through the eye of a needle.
Naturally he looks around for
help. Money is of key importance if enormous sums must be spent
to reach the vast electorate to break down public inertia and secure
substantial polling. In such a background Rahim Khan (RI) is alleged
to have prayed upon Sohanlal's inability to finance his
election by
offering the sinews of war thereby indirectly deriving good negative
return for his money. Sohanlal himself hes backed a good P' rt of this
case, so faras the giving of a caris concerned. Straight from the horse's
mouth, as it were, we have this :
"On the 14th of February 1972, Rahim Khan, Tayyab Hussain, Faquira, Chet Ram and Yamin .Khan came to me, and
offered me money and a car. Rahim Khan paid Rs. 1,000 to
Faquira for expenses on the car. I was carrying on propaganda
for my election."
On the crucial point whether the car (and all found) was given to
make him continue the contest there is silence in chief-examination
and denial in cross-examination although his ambiguous sympathies
seem, if at all, to be with the Congress candidate in the election case.
The testimony of P. W. 22 (Ram Kishan), P. W. 23 (Habib), P. W. 24
(Jaswant Singh) and R 3. W. I (Faquira) has been pressed into service
in this connection. The evidence of P. W. 22, 23 and 24 does not bear
on the condition of non-withdrawal as the basis for the supply of free
transport R3 W. I swears :
"During the last general election I was supporting Rahim
Khan respondent. 20 or 25 days before polling I went to Sohan
Lal respondent in the company of Rahim Khan, Badri Parshad
respondent, Tayyab Hussain and Mauj Khan. Sohan Lal respondent said that although he had stood for the election, he
was feeling handicapped on account of lack of financial resources. Rahim Khan told him not to worry inasmuch as he
654
SUPREME COURT REPORTS
[1975] 1 S.C.R.
(Rahim Khan) would provide him necessary finance. In my
presence
no
money
was
paid,
bnt
Rahim
Khan
placed a car at
the disposal of Sohan Lal respondent.
Rahim Khan told me that I should support Sohan Lal and that
Rahim Khan would reimburse me for all expenses in connection
with the car."
Here also the vital element of inducement not to withdraw is
absent. Of course even regarding giving the car there is some evidence contra of the appellant and of Tayyab Hussain (R3 W. 9).
But the crux of the matter is the pecuniary pressure put on a candidate
to persist in the candidature ; this latter limb is unproven and not
even formally found by the lower Court. The serious scrutiny of law
and facts expected of election tribunals before unseating a returned
candidate is wanting in the High Court's finding and we hold that, suspicions apart, the charge of bribing Sohanlal into fighting a futile
battle has not been brought home as required bys. 123(1) of the Act.
At the last stages of the argument before us Shri Sharma
made
a
virtue of necessity and did not press the case of bribery.
The decisive and deadly chapter of the petition relates to the multiA
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pointed propaganda violating the canons of election law set out in s.
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123(2), (3) and (4). Question of law about the correct construction
of the relevant provisions arise but the primary issue is one of fact.
Were public meetings held on 9th and 10th of March maligning orally
and through handbills the Congress candidate for lack of personal
morals, for heathen and bohemian ways and for being a . potential
danger to good mussalrnans ? Were pamphlets like Ex. P-3 made and
distributed on or about March 9 and IO by the returned candidate and
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his agents, describing his Congress rival as a pork-eater and taker of
virginities, as a coercive agent getting muslim graves dug up and forcing true muslims eat roast pig ?
A few phenomena appear in this case which deserve judicial notice
for the purpose of appreciating the evidence on this branch of the
story of corrnpt practices. Both the contesting parties, the appellant
and the ]st respondent, are strong men with considerable hold on large
numbers of people in the constituency, as the polling result reveals.
Both of them have been in and out of office and naturally the bid for
power would whet their appetite. The wild allegations in the petition,
iftrne, would suggest that the appellant tried many methods of assuring victory for himself, such as setting up a Hindu candidate who would
carry away the Hindu votes, a Harijan candidate who would wean
away Harijan votes and the Muslim votes being attracted into his count
by painting his Congress rival a kajir and himself a Muslim good
and trne. At this stage it is clear that the theory of ex-communication
set up in the petition has been abandoned. Likewise, bribery based
on the Jan Sangh candidate has also been dropped. The supply of
a car as an inducement not to withdraw from the election, to Sohanlal
has been upheld by the trial Court, but we have already expressed our
view to the contrary.
We are left ultimately with the story of the public meetings where
slanderous speeches were made and of libellous leaflets having been
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RAHIM v. KHURSHID (Krishll{l. Iyer, I.)
655
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distributed. There iz no doubt that tension had mounted and the
candidates were frantic. An order under s .. 144 Cr. P.C. had been
clamped down on the whole coustituency and a large police force was
moving around to maintain Jaw and order in the whole area. The
argument of appellant's counsel is that since meetings of :five or more
persons in public places had been prohibited, it was unlikely that there .
would have been open violation in many villages by the appellant himself, a former Deputy Minister and Tayyab Hussain, a sitting Member
of Parliament. Nor could the police have been so insouciant as to
ignore _nllll).erous breaohes of the ban on public meetings. Equally
Strong IS the circwrutance thet had there been meetings in contravention of prohibitory orders, the Congress candidate, a Cabinet Minister
at the time of the election, would not have kept quiet at all. It is
also note-worthy that s. 126 of the Act prohibits holding of public
meetings within '48 hours of the close of the poll. We are impressed
with these circumstances and would have unhesitatingly held as umafe
the oral testimony in proof of public meetings. However we are not
prepared to discredit outright all the evidence about gatherings in
the villages, where the appellant spoke to people, solely on the ground
of the ordet under s. 144 Cr. P. C. What we see from the evidence is
that there were no regular meetings prearranged and public, It was
more a case.