# RAMANBHAIASHABHAIPATEL v. DABHI AJITKUMAR FULSINn AND OTHERS

- **Citation:** [1965] 1 S.C.R. 712
- **Court:** Supreme Court of India
- **Decided:** 1964-10-09
- **Case number:** Civil Appeal No. 506 of 1964
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, RAGHUBAR DAYAL fND J. R. MUDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramanbhaiashabhaipatel-v-dabhi-ajitkumar-fulsinn-and-others-3386
- **Pages:** 14

## Headnote

Representation of the l'eop/e Act (43 of 1951), s. 123(3)-Corrupt
practice of using religious symbol-What is.
Practice-Supreme Court-Appeal by special leav•-Right of responlient to support ;udgnzent on grounds found against by High Court.
Election-Purity of-Tribunal and High Court-Duty to 1nqui1' into
allegations of corrupt practice.
The first respondent sought to have the election of the appellant to the
Assembly seat set aside on the following two grounds, amoog others :-
(i) that the appellant was guilty of a corrupt practice within the meaning
of a. 123(3) of the Representation of the People Act, 1951, by using a
religious symbol, namely the Dhruva star, as bis election symbol, and by
the distribution of pamphlets in which the qualities of the stat were set out,
and (ii) that the second respondent's nomination paper was improperJ;1
accepted because he had not completed 25 years of age.
The Tribunalrejected the first ground but set aside the election on tho second. On appeal,
the High court rejected the second ground, but set aside tlie ele<:tion on
the first.
On appe-•l to the Supreme Court,
HELD : (i) An election dispute is to a certain extent different from
a private dispute behveen the parties to a /is because the constituency also
comes into the picture and, therefore, it is the duty of the Election Tribunal
to safeguard its interests and if corrupt practices. are alleged against any
candidate to enquire into them and ascertain whether the allegations have
been substantiated.
llut where a party did not seek to challenge those
findings there was no further duty upon the High Court to examine their
correctness. [715 C-E]
(ii) The use of the Dhruva star and its description in the pam~hlet did
not amount to a corrupt practice within the meaning of the sccuon. To
aay that voters who saw or read the leaflets were likely to coajure up in·
lbeir minds the picture of a highly religious person and, therefore, their
relisious sentiments would have been aroused was too fat fetched a conclusion. [723 Al
(iii) .1\.9 soon as special leave is granted there is an appeal before the
Supreme Court and while dealing \\'ith such an appeal it exercises its civil
jurisdiction, when the matter arises out of civil proceedings. [724 A-BJ
(iv) While dealing with the appeal before it, this Coun has the power
IO decide all the points arising from the judgment appealed against and
even in the absence of an express provision like 0. XU, r. 22 of the
Code of Civil Procedure it can devise the appropriate procedure to be
adopted at the hearing. There could be no better way of supplying the
deficiency than by drawing upon the prO\isions of a general Jaw like the
Code of Civil Procedure and adopting such of those provioions as are
suitable. (724 D·FJ
I
A
B
c
D
E
F
G
H
ASHABHAI PATEL v. DABIIl FULSINJI (Mudholkar /.)
713
A
Jagdev Singh Sidhaliiti v. Pratap Singh Daulta and Ors. A.I.R. 1965
S.C. 183; Shubnath Deogram v. R,am Narain Prasad & Ors. [1960) 1
S.C.R. 953 and Ku/tar Singh v. Mukhtiar Singh, A.LR. 1965 S.C. 141,
followed.
Observations in Vashist Narain Sharma v. Dev Chandra & Ors. [1955)
1 S.C.R. 509, 519, disapproved.
.
.
Sri Baru Ram v. ShrimaJi Prasanni and others, [1959) S.C.R. 1403,
B
referred to.

## Text

712
RAMANBHAIASHABHAIPATEL
v.
DABHI AJITKUMAR FULSINn AND OTHERS
October 9, 1964
(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
M. HIDAYATULLAH, RAGHUBAR DAYAL
fND J. R. MUDHOLKAR JJ.)
Representation of the l'eop/e Act (43 of 1951), s. 123(3)-Corrupt
practice of using religious symbol-What is.
Practice-Supreme Court-Appeal by special leav•-Right of responlient to support ;udgnzent on grounds found against by High Court.
Election-Purity of-Tribunal and High Court-Duty to 1nqui1' into
allegations of corrupt practice.
The first respondent sought to have the election of the appellant to the
Assembly seat set aside on the following two grounds, amoog others :-
(i) that the appellant was guilty of a corrupt practice within the meaning
of a. 123(3) of the Representation of the People Act, 1951, by using a
religious symbol, namely the Dhruva star, as bis election symbol, and by
the distribution of pamphlets in which the qualities of the stat were set out,
and (ii) that the second respondent's nomination paper was improperJ;1
accepted because he had not completed 25 years of age.
The Tribunalrejected the first ground but set aside the election on tho second. On appeal,
the High court rejected the second ground, but set aside tlie ele<:tion on
the first.
On appe-•l to the Supreme Court,
HELD : (i) An election dispute is to a certain extent different from
a private dispute behveen the parties to a /is because the constituency also
comes into the picture and, therefore, it is the duty of the Election Tribunal
to safeguard its interests and if corrupt practices. are alleged against any
candidate to enquire into them and ascertain whether the allegations have
been substantiated.
llut where a party did not seek to challenge those
findings there was no further duty upon the High Court to examine their
correctness. [715 C-E]
(ii) The use of the Dhruva star and its description in the pam~hlet did
not amount to a corrupt practice within the meaning of the sccuon. To
aay that voters who saw or read the leaflets were likely to coajure up in·
lbeir minds the picture of a highly religious person and, therefore, their
relisious sentiments would have been aroused was too fat fetched a conclusion. [723 Al
(iii) .1\.9 soon as special leave is granted there is an appeal before the
Supreme Court and while dealing \\'ith such an appeal it exercises its civil
jurisdiction, when the matter arises out of civil proceedings. [724 A-BJ
(iv) While dealing with the appeal before it, this Coun has the power
IO decide all the points arising from the judgment appealed against and
even in the absence of an express provision like 0. XU, r. 22 of the
Code of Civil Procedure it can devise the appropriate procedure to be
adopted at the hearing. There could be no better way of supplying the
deficiency than by drawing upon the prO\isions of a general Jaw like the
Code of Civil Procedure and adopting such of those provioions as are
suitable. (724 D·FJ
I
A
B
c
D
E
F
G
H
ASHABHAI PATEL v. DABIIl FULSINJI (Mudholkar /.)
713
A
Jagdev Singh Sidhaliiti v. Pratap Singh Daulta and Ors. A.I.R. 1965
S.C. 183; Shubnath Deogram v. R,am Narain Prasad & Ors. [1960) 1
S.C.R. 953 and Ku/tar Singh v. Mukhtiar Singh, A.LR. 1965 S.C. 141,
followed.
Observations in Vashist Narain Sharma v. Dev Chandra & Ors. [1955)
1 S.C.R. 509, 519, disapproved.
.
.
Sri Baru Ram v. ShrimaJi Prasanni and others, [1959) S.C.R. 1403,
B
referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 506 of
1964.
Appeal by special leave from the judgment and order dated
March 11, 12, 196'.3, of the Gujarat High Court in First Appeal
C No, 428 of 1962 .from Original Decree.
D
S. T. Desai and S. C. Agarwal, for the appellant.
Rajani Patel and I. N. Shroff for the respondent.
S. S. Shukla, for respondent No. 2 and the Intervener.
The Judgment of the Court was•delivered by
Mudholkar J.
The main question which arises for decision,
in this appeal riom .me judgment of the Gujarat High Court is
whether the appeuau1 could be said to be guilty of a corrupt practice contemplated by sub-s. (3) of s. 123 of.the Representation of
E
the People Act, 1951 (hereinafter referred to as the Act) by
reason of the fact that his election symbol, a star, was described
as 'Dhruva star' in the pamphlets published and distributed by
him or by his agents and in which the qualities of Dhruva star were
also set out.
F
The election to the Assi:mbly seat was contested by three candidates, the appellant, respondent No. 1 and respondent No. 2. The
appellant having secured 20,062 votes as against 15, 190 secure<l
by the first respondent and 7 ,093 by the second respondent, was
declared to be elected on ·February 26, 1962.
The first respondent thereupon preferred an election petition before the Election
G Commission challenging the appellant's election on the follo~
five· gr<iunds:
( 1 ) That the second respondent had not completed
25 years of age on the date of the scrutiny of the nomination papers, that· the acceptance of his nomination
paper was improper and that the result of the election
H
was-materially affected ·thereby inasmuch as
all the
votes secured by him, would, if he had not been a candidate, have been secured by the first respondent;
SUPREME
COURT
REPORTS
[1965] I S.C.R.
(2) that the appellant was guilty of corrupt pracA
tices because he and his agents had bribed the voten
and had also brought undue influence to bear upon
them;
( 3) that the appellant and his agents procured bus
No. OTA 7673 for taking the voters from village Sodpur
to and from the polling booths;
( 4) that the appellant and his agents had issued and
widely distributed leaflets with 'star' as a symbol prtr
fixed by the word "Dhruva" with a view to give religious impetus and to appeal to the voters to vote for
him in the name of religion;
c
( 5) that certain notifications issued by the Governor of the State of Gujarat and the Election Commission
had not been issued in due compliance with the provisions of law.
The Tribunal rejected all the allegations relating to corrupt
practices made against the appellant and also held that the distribuD
tiOD of leaflets did not amount to a corrupt practice. The Tribunal
iimilarly rejected the contention of the first respondent as to the
validity of the notificatkms issued by the Governor and the Election Commission.
It, however, held that the second respondent's
nomination paper had been improperly accepted because he had
not attained the age of 25 at the date of scrutiny and that in
E
consequence thereof the result of the election was
materially
affected. Upon this ground it set aside the appellant's election.
In appeal the High Court reversed the finding of the Tribunal
regarding the age of the second respondent and held that he having
completed the age of 25 on January 6, 1962 which was prior F
to the date of scrutiny was duly qualified to contest the election.
It, however, affirmed the ultimate decision of the Tribunal on the
ground that the appellant and the Swatanfra Party to which ho
belonged had been guilty of a corrupt practice, namely, of appealing
to the electorate on grounds of religion and of using a religious
symbol for the furtherance of his prospects in the election. The G
judgment of the Court was delivered by K. T. Desai C.J. in the
course of which he has stated (at p. 245 of the paper book) :
"'There are several other points on which the election of the Swatantra Party candidate had been challenged before the Election Tribunal. Mr. Dafu, the
learned advocate for the first respondent before us, has
been content with arguing the case of the first respondent before us on the basis of a corrupt practice being
H
A
B
.
ASHABHAI PATEL v. DABHI FULSINJI (Mudholkar I.)
715
committed by . the Swatantra Party with the consent of
the Swatantra Party candidat11.
He has not pressed the
other points or other arguments into . service.
The
matter is an election matter and if we had found it necessary we would have gone into other matters, but it is
not necessary for us to do in view of our decision that
. the election is liable to be declared void by reason of the
corrupt practice that has been committed at the election with the consent of the appellant before us."
Thill is rather a curious observation to make in view of the fact
that on all the other points the Tribunal had itself found against
c respondent No. 1 and respondent No.· 1 was content to stake his
case only on one point, and that is, the one which ultimately
found favour with the High Court.
It is true that an election
dispute is to a certain extent different from a private dispute
between the parties to a /is because the constituency also comes
into the picture and, therefore, it is the duty of the Election
D Tribunal to safeguard its interests and if· corrupt practices are
al1cgcd against any candidate to enquire into them and ascertain
whether the allegations have been substantiated. Here, the Tri-
. bunal's findings were that the other corrupt practices had not been
established. Since Mr. Daru who appeared for respondent No. 1
E
did not even seek to challenge those findings there was no further
duty upon the High Court to examine their correctness.
Similarly, the contention of respondent No. 1 to the effect that certain
notifications were invalid was also negatived by the Tribunal and
Mr. Daru did not want to challenge its decision. The question
whether a particular notification is valid or invalid has no bearing
F
upon the question of purity of elections and, therefore, if a party
who raises a contention of this kind does not propose to proceed
with it, the matter is at an end and neither the Tribunal nor the
High Court is bound to enquire into it. In this appeal, . therefore,
we will confine ourselves only to two points-'-the first wh.ether
the view of the High Court regarding the effect of the use of the
G Dhruva star by the appellant is correct and the other whether
the nomination of the second respondent as a candidate was improperly accepted. ·
H
Section 123 of the Act sets out what shall be deemed to be
corrupt practices for the purposes of the Act.
Sub-section ( 3) thereof provides as follows :
''The following shall be deemed to be corrupt
practices for the purposes of this Act :-
71G
Sl'PRE:vIE
COURT
REPORTS
[1965) I S.C.R.
(3) The appeal by a candidate or his agent or by
any other person with the consent of a candidate or his
election agent to vote or refrain from voting for any
person. on the ground of. his religion, race, caste, community or language or the use of, or appeal to, religious
symbols or the use of, or appeal to, national symbols,
such as the national flag or the national emblem, for the
furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any
candidate."
A
B
Th;s provision thus deals with two matters: an appeal on the
C
ground of religion, caste, etc., and the use of or an appeal to
religious symbols, national symbols etc. Resort to these practices
in an election is prohibited by it.
The allegation here is that
the appellant and his agents have contravened the provision by
the use of or appeal to a religious symbol. The question is whether the Dhruva star is a 'religious symbol'.
As pointed out by D
this Court in Jagdev Singh Sidhanti v. Pratap Singh Daulta &:
Ors. ( 1 ) the question has to be examined in two branches : whether the symbol used
has any special religious significance and
whether its inscription on leaflets and pamphlets which were distributed amounts to the use of a religious symbol.
E
If the Dhruva star has no religious significance, its use in the
manner made will not convert that use into a use of a religious
symbol.
The High Court has held that it is a symbol of the
Hindu religion.
If we find that no particular object or creature
could be regarded as a religious symbol among Hindus, its use in
an election will not be within the prohibition enacted ins. 123(3)
F
of the Act.
For, it must be borne in mind that the object underlying the prohibition is stirring up religious sentiment by use of
or appeal to a religious symbol. If what is done does not tend
to arouse religious sentiment, s. 123(3) woul<I not
bo transgressed.
It is not disputed that the Election Commission has allotted
'star' as a symbol to the Swatantra Party which had put forward
the appellant as its candidate. Nor is it disputed that in some
G
of the leaflets and pamphlets distributed by or on behalf of the
appellant the election symbol of the Swatantra Party is described
H
as the star Dhruva or the Pole Star.
It is also not disputed that
(I) A.l.R. 1965 S.C. 183.
ASHABHAI PATEL v. DABHI FULSINJI (Mudholkar !.)
717A on some pamphlets the followinig characteristics associated with
the star Dhruva are set out:
"Dhruva means eternal.
Dhruva means firm.
Dhruva means guide.
B
Dhruva means determined.
Dhruva means one devoted to religion."
In Exhibit 63 which is the -translation of the' Election manifesto
of the appellant it is further said : "for free religion, free agriculture and free commerce, vote for none else but the 'Dhruv,;;no
c
Taro'. that is Swatantra Party, at the corning elections." Not a
single pamphlet, or leaflet is alleged to have been distributed by
or at the instance of the appellant in which a direct appeal is
made to the religious sentiments of the voters. The short question,
therefore, is whether by describing the election symbol as Dhruva
star and by specifying its attributes, the provisions of sub-s. ( 3) of
D s. 123 could be said to have been violated.
Let us first consider whether the mythological figure Dhruva
has any significance in the religious beliefs or practices of Hindus.
The High Court seems to have delved deep into the Vishnu
Purana, the Mahabharata and the Bhagwat for digging up the story
E of Dhruva and ascertaining and describing his qualities and particularly of his steadfast devotion to the creator. All that seems
to us to have been wholly unnecessary because it leads us i;iowhere.
Briefly, the story of Dhruva is that as a result of his
steadfast devotion and complete surrender to God, Dhruva earned
a boon and that was being accorded a unique place in the firmaF ment where in relation to the rest of the steller bodies his position
is fixed.
According to the Puranas he was promised this position till the destruction of the universe.
This itself shows that
he w~s not raised to the status of ,divinity, that is to say, he did
not join the company of the 33 crore deities which are said to
G
H
comprise the Hindu Pantheon.
How then can the association·
of Dhruva with the star be regarded as an appeal to Hindu religious sentiments ? The five qualities which are generally associated with Dhruva are, indeed, noble qualities but they have no
significance peculiar to Hindu religion. The significance of these
qualities to -the Hindus would be in no way different from that
to persons professing other religions or systems of beliefs.
Wedo not think that there was any justification for- the High Court t<>
read more into the symbol used by the appellant than what it
apparently contains.
-
718
SUPREME
COURT
REPORTS
(1965] l S.C.R.
It is true that during the wedding ceremony of a Hindu the
A
attention of the bride and the bridegroom is drawn to the Dhruva
star and they are exhorted to be steadfast in their loyalty to· each
other as Dhruva was in his devotion to Vishnu.
In a few other
ceremonies also the example of Dhruva is cited or a reference to
his qualities made.
But since Dhruva is not regarded as a deity
or a Godhead a reference to him cannot be said to have religious
B
significance even to an orthodox or an illiterate and religiously
minded Hindu. It is said that the word "Dharma priya", a quality
of Dhruva mentioned in the leaflet and pamphlets, gives religious
significance to the Dhruva star.
The word 'Dharma' can mean
religion.
But it can also mCl!n 'duty'. Accordinit to the High
Court it must be taken to !'lean 'one devoted to religion' and for
C
arriving at this conclusion it has, as already stated, referred to
the Vishnu Purana, the Bhagwat and the Mahabharata.
It has
also referred to the evidence of a witness who says that the Dhruva
star is worshipped at the time of marriage and at the time of
entry into a new house.
But all this only shows that Dhruva
D
was regarded as a great devotee of Vishnu and held in reverence
by Hindus. It clearly negatives the idea of Dhruva being a
Godhead.
Worship of mortals is so common, at least in our
country, that no one can serioasly attach religious significance to
it.
Such worship has no connection whatsoever with religion and
is often motivated by fear of authority or by hope of reward. It
E
is said that the remembrance and repetition of Dhruva's name has
religious efficacy .. The prevalence of such a belief amongst the
Hindus has not been established and therefore there is no basis
for saying that the mere mention of the Dhruva star will arouse
the religious sentiments
of Hindus amongst the electorate. In
Sidltanti's case(') earlier referred to the use of pennants on which
F
"Aum" or "OM" was inscn'bed was held not to fall within the
prohibition enacted in s. 123 ( 3) of the Act upon the ground that
"Aum" does not symbolise religion or anything religious.
Uadoubtedly it has great spiritual or mystical
significance. For
according to the Upanishads it is from the primordial sound
"Aum" that this phenomenal universe was projected and that this
G
universe exists in and ultimately dissolves in "Aum". It is thos
everything including God or Ishwara and the Supreme Brahman.
Accordingly "Aum" is sacred to the Hindus.
But this Court has
held that even so, the use of pennants on which "Aum" was inscribed did not amount to use of or appeal to a religious symbol.
Much less can the distribution of pamphlets on which a symbol
H
(I) A.
%5 S.C. 183.
•,,
'
A
B
c
ASHABHAI PATEL v. DABHI FULSINJI (Mudholkar J.)
71!>
to which no reliqious sanctity attaches be regarded as use of or
appeal to a religious symbol.
As already stated, the Election Commission has itself allotted
the symbol of star to the Swatantra Party. Would it be turned
into a religious symbol because ,the star is described in the leaflets as the Dhruva star? In Webster's New Word Dictionary a
symbol is described thus : "something that stands for or represents
another thing; especially an object used to represent something
abstract; emblem : as, the dove is a symbol of peace, the cross is
the symbol of Christianity." The star, standing by itself, was a
symbol of the Swatantra Party. Would it become then a religious
symbol unless, like the cross, it is regarded as a symbol of Hindu
religion when it is associated with Dhruva ? It is impossible to
say that any particular object, bird, or animal could be regarded
as a "symbol of the Hindu religion". The basic concept of Hindu
religion is that the supreme being is in every "inanimate" object,
plant, creature or person, i.e., in the entire creation and that the
D
entire creation is wifiiin the Supreme Being. If, therefore, according to the fundamental concept of Hindu religion, God or Divinity
is the reality or the substance of everything that exists, it would
not be possible to say that any particular object is a symbol of the
Hindu reli!!:ion. It is true that various deities in the Hindu
E
pa.ntheon ;re associated with scime specific objects, birds or
animals. Thus, for example, Shiya is associated with a trident and
a coiled cobra round his neck; Vishnu is associated with the cobra
'Shesha' on which he reclines as upon a bed; the eagle is associated
with Vishnu aS his vehicle; the goddess Lakshmi is associated with
lotus upon which she stands and so on and so forth. Does it mean
then that if a person uses a lotus or a cobra or a trident as his
F
election symbol he will be appealing to the religious sentiments of
the people ? The answer must be clearly in the negative.
What is ·a religious symbol has also been considered by this
Court in Shubnath Deogram v. Ram Narain Prasad & Ors.(') In
that case the appellant who had been set up by the Jharkhand·
G Party had been elected to the Bihar Legislative Assembly. He wa~
an Adibasi belonging to the Ho community and the electorate in
that constituency largely consisted of Adibasis belonging to this
community as well as to two othe~, Mundas and Oraons.
The
Election Commission had allotted 'Cock' as the emblem to the
party. Now, a cock is not a religious symbol of Adibasis but it
H
forms an integral part of the religious ceremonies which they perform while worshipping some of their deities.
The Jharkhand'
(I) [1960] I S.C.R. 953.
720
SUPREME
COURT
REPORTS
[1965) l S.C.R.
party issued and distributed leaflets in verse wherein an appeal was
A
made by a cock for the votes of the electorate. The majority of
the Judges beld that this leaflet contained an appeal to the voters
on the ground of religion and that the appellant was guilty of a
corrupt practice falling within the purview of sub-s. ( 3) of s. 123
of the Act. The conclusion of this Court ~as based not upon the
mere fact of the use of the symbol of cock but it was based upon
B
the nature of the appeal for votes made by the cock. In the leaflet
the cock had said among other things : "Give me chara in the
shape of voter I am victorious. Do not forget me, otherwise I
tell, ye sons of men will suffer eternal miseries." According .to
this Court this, in substance, amounted to saying that it would
C
please the deities if they did so because the cock in it~ tum was
meant for sacrifice to the deities and it would displease them if
they did not. The case is thus distinguishable from the one before
us. Incidentally we may quote the following observations of Subba
Rao J., as to what, according to him. was meant by the expression
appealing to the religious sentiment. At p. 965 he says :
D
"A distinction must, therefore, be drawn between
canvassing on grounds of religion and seeking of votes
in graphic or picturesque language with analogies from
religious lore : to illustrate, a candidate may appeal to
the ele<;torate consisting of persons professing different
religions,
say
Hindus,
Mohammadans,
Christians
etc., to vote for him and say that he would sacrifice his
life in the cause of his constituency just like Christ sacrificed his life to redeem the world. He may also say that
like Rama, the virtuous,
who
killed
Ravana,
the
rakshasa, the embodiment of evil, he would, if elected,
put down corruption, nepotism and the like in Government. He may even say that he would sacrifice himself
as a goat before Kali to bring happiness and prosperity
to his constituency. All these sirnilies are drawn from
religion, but they do not embody an appeal, directly or
indirectly, to
vote for the candidate on grounds of
religion."
We have quoted the learned Judge to point out tha.t a
reference to prophets or religions or to deities venerated in a religion or to their qualities and deeds does not necessarily amount
E
F
G
to an appeal to the religious sentiment of the electorate.
Something more has to be shown for this purpose as indeed, according H
to the majority of the Judges who decided the case, was established
therein. If, for instance, the illiterate, the orthodox or the fanatical
ASHABHAI PATEL v. DABHI FULSINJI (Mudholkar J.)
721
A electors are told that their religion would be in danger or they
will sufier miseries or calamities unless they cast their vote for a
particular candidate, that would be quite clearly an appeal to the
religious sentiment of the people. Similarly if they are told that
the wrath of God or of a deity will visit them if they do not
B
exercise their franchise in a particular way or if they are told that
they will receive the Blessings of God or a deity if they vote in a
particular way, that would be an appeal to the religious sentiment.
Similarly if they are told that they should cast their vote for a
particular candidate whose election symbol is :associated with a
particular religion just as the Cross is with Christianity, that will
C
be using a religious symbol for obtaining votes. But where, as in
the case of the Hindu religion, it is not possible to associate a
particular symbol with religion, the use of a symbol even when it
is associated with some deity, cannot, without something more,
be regarded as a corrupt practice within the meaning of sub-s. (3)
of s. 123 -0f the Act. For instance, a particular object or a plant,
D
a bird or an animal associated with a deity is used in such a way
as to show that votes are being solicited in the name of that deity
· or as would indicate that the displeasure of that deity would be
incurred if a voter does not react favourably to that appeal, it may
be possible to say that this amounts to making an appeal in the
name of religion.
But the symbol standing by itself cannot be
E
regarded as an appeal in the name of religion.
How election literature should be construed has been considered by this Court in Ku/tar Singh v. Mukhtiar Singh. (1 )
In
that case the question· was whether upon a fair and reasonable
construction, a poster published by or at the instance of an Akali
candidate for election to the Punjab Legislative Assembly amountF
ed to a corrupt practice under s. 123 (3) of the Act. In that
poster it was said that at this critical juncture it was the duty of
the voters who were predominantly Sikhs to keep high the honour
of the Panth, not to criticise the weaknesses of the leaders of the
Panth and to defeat the opponents of the Panth at the general
G
elections.
This Court observed that the Akali Dal party was recognised as a political party for election purposes notwithstanding
the fact that all of its members were only Sikhs.
Then it
observed:
H
"So long as law does not prohibit the formation of
such parties and in fact recognises them for the purpose
of election and parliamentary life, it would be necessary
to remember that an appeal made by candidates of
(1) A.I.R. 1965 S.C. 141.
722
SUPREME
COURT
REPORTS
[1965] 1 S.C.R.
such parties for votes may, if successful, lead to their
election and, in an indirect way, may conceivably be
influenced by considerations of religion, race,
caste,
community
or
language.
Thi~ infirmity
cannot
perhaps be avoided so long as parties are allowed to
function and are recognised though their composition
may be predominantly based on membership of particular communities or religions. That is why we think,
in considering the question as to whether a particular
appeal made by a candidate falls within the mischief of
s. 123 ( 3), Courts should not be astute to read into
the words used in the appeal anything more than can
be attributed to them on its fair and reasonable
construction .
. . . . . . . . The document must be read as a whole
and its purport and effect determined in a faic, objective and reasonable manner.
In reading such documents, it would be unrealistic to ignore the fact that
.... the atmosphere is usually surcharged with partisan
feelings and emotions
and the
use of hyperboles or
exaggerated language, or the adoption of metaphors.
and the extravagance of expression in attacking one
another, arc all part of the game; and so. when the
question about the effect of speeches delivered or pamphlets distributed at election meetings is argued in the
cold atmosphere of a judicial chamber, some allowance must be made and the impugned speeches or
pamphlets must be construed in that light."
We agree that election literature should neither be judged ~trictly
nor taken literally.
All the greater reason, therefore, that the
Courts ought not to read more in
such literature than what
appears on its face.
But what, unfortunately, the High Coun
has done in the case before us is to read more into the pamphlets
than what they on their face contain.
As far as we have been able to understand the judl!ffiCnt
of Desai C.J. what he seems to say is this: that the Pole Star
must be equated with the devotion of Dhruva, that Dhruva was
a highly religious person, that when the leaflet say that Dhruva
stands for five things it refer to his religious qualities, that such
a reference
would bring to the mind's eye of the voter the
religious virtues of Dhruva and that, therefore, the symbol must
be held to have been intended to evoke religious sentiments of
the voters and affect their religious susceptibilities.
A
B
c
D
E
F
G
H
ASHABHAI PATEL V. DABHI FULSINJI (Mudholkar /.)
723
A
We have already said
what Dhruva stands for.
To say,
therefore, that voters who saw or read these leaflets were likely to
conjure up in their minds the picture of a highly religious person
and, therefore, their religious sentiments may have been aroused
would be too far fetched a conclusion to be justified.
B
We are, therefore, of the opinion that the High Court was
in error in reversing
the judgment
of the Tribunal on this
pOint.
Before Mr. Patel referred to the finding of the High Court
regarding ·the validity
of the second respondent's nomination
paper Mr. S. T. Desai appearing for the appellant raised a preliC
minary objection to the effect that the first respondent was not
competent to challenge the correctness of the finding as he had
not preferred an appeal therefrom. In support of the contention
he relies upon the decision of this Court in Vashist Narain Sharma
v. Dev Chandra & Ors. (1). That also was an appeal arising out
of an election matter.
Learned counsel for the respondent had
D .tried to support the decision of the Tribunal on grounds which
had been found against
the appellant by the Tribunal.
This
Court did not permit him to do so on the ground that the provisions of the Code of Civil Procedure have no application to
appeals brought by special leave under Art. 136 of the ConstituE
tion and observed :
"We have no appeal before us on behalf of the respondents and we are unable to allow that question to
be re-agitated."
That judgment was relied upon on behalf of the appellant in
F
Sri Baru Ram v. Shrimati Prasanni & Ors.(2 ). Mr. Doabia who
appeared there for the respondents challenged the correctness of
the earlier decision but this Court observed :
-
"Prima facie there appears to be some force in this
contention; but we do not think it necessary to decide
this point in the present appeal.
Mr. Aggarwal's obG
jection assumes that respondent 1 should have preferred
a petition for special leave to appeal against the finding
of the High Court on the issue in question; if that be
so, the application made by her for leave to urge
addition.al grounds can be converted into a petition for
special leave to appeal against the said finding, and the
H
delay· made in filing the same can be condoned."
(p. 1417)
(I) [195S) I ·S.C.R. 509, 519.
L2Sup./65-3
(2) [1959) S.C.R. 1403.
724
SUPREME
COURT
REPOP.TS
(1965) I S.C.R.
It is obvious that the Division Bench followed
the earlier
Division Bench only because it has considered itself bound by it.
It seems to us, with respect, that the earlier decision does not
correctly represent the true legal position.
For, a~ soon as special
leave is granted there is an appeal before this Court and while
dealing with such an appeal this Court exercises its civil jurisdiction.
It is true that the rules framed by this Court in exercise
of its rnle making powers do not contain any provision analogous
to 0. XU, r. 22 of the Code of Civil Procedure which permits
a party to support the judgment appealed against upon a ground
which has been found against him in that judgment.
The provision nearest to it is the one contained in 0. XVIII, r. 3 of the
Rules of this Court which requires partie.> to file statement of
cases.
Sub-rule
( l) of that rule provides that Part I of the
statement of the case shall also set out the contentions of the
parties and the points of law and fact arising in the appeal.
II
further provides thJt in Part IT a party shall set out the propositions of law to be urged in support of the contentions of the
pa~ty lodging the case and the authorities
in support thereof.
There is no reason to limit the provision of this rnle only to
those contentions which deal with the points found in favour of
that party in the judgment appealed from.
Apart from that we
think that while dealing with the appeal before it this Court h~
the power to decide all the points arising from the judgment
appealed against and even in the absence of an express provision
like 0. XU, r. 22 of the Code of Civil Procedure it can devise
the appropriate procedure to be adopted at the bearing.
·There
could be no better way of supplying the deficiency than by drawing upon the provisions of a general law like the Code of CiVJ1
Procedure and adopting such of those provisions as arc suitable.
We cannot lose sight of the fact that normally a party in wbose
favo~~ the judgment appealed from has been given will not be
granted
special
leave to appeal from it.
Considerations of
justice, therefore, require that this Court should in appropriate
cases permit a party placed in such
a position
to support the
judgment in his favour even upon grounds which were negatived
in that judgment.
We are, therefore,
of the opinion that in
Vasisht Narain Sharma's case(') too narrow a view was taken
regarding the powers of this Court and we over-rule the preliminary objection of Mr. S. T. Desai.
In so far as the age of the· second respondent is concerned
the High Court has fully considered the evidence and has rightly
(l) (1955] I S.C.R. SC9.
A
c
D
F
G
ASHABHAI PATl!L v. DABHI FULSINJI (Mudholkar I.)
725'
A
r~jected the entries in the birth and death register maintained
by the police Patel and instead . accepted the school cc;rtificates
pertaining to the second respondent in which· his da~ ofc birth
is stated.
We need not say anything
more on this point as
Mr. Patel, who appears for the first· respo11dent, has not seriously
challenged the finding of th\: High Court.
Upon this view we
B
hold that no ground has· been made .out for. •settint' aSide the
election of the appellant, allow the appeal; set aside the decisions
of the High Co~ and_ the Election Tribunal and dismiss .the
election petition With co8ts 'throughout:
Appeal allowed.