# SHRI BABURAO PATEL & ORS v. DR. ZAKIR HUSAIN & ORS - **Citation:** [1968] 2 S.C.R. 133 - **Court:** Supreme Court of India - **Decided:** 1967-11-07 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shri-baburao-patel-ors-v-dr-zakir-husain-ors-4300 - **Pages:** 21 ## Headnote A B c D E F G H SHRI BABURAO PATEL & ORS. v. DR. ZAKIR HUSAIN & ORS. November 7, 1967 JK. N: WANCHOO, C.J., R. S. BACHAWAT, V. RAMASWAMI, G. K. MITTER AND K. S. HEGDE, JJ.] Constitution of J11dia, Arts. 58, 84 a11d 324-Scope o/~andidates to Presidential Ofjice--Oath if necessary for eligibility. Presidential & Vice-Presideniial Elections Act (30 of 1952), s. 18L1n.due lnfluence--Canvassing by Pri111e Minister and Minister u1'10 is Chief Whip of Party, if amounts undue influence. As a result of the Presid·ontial election held in May, 1967, respondent No. 1 was declared elected. The petitioners challengod the election on the following two grounds, namely (i) Art. 58( I) (c) required that a person to be eligibl·o for election as President must be qualified for election as a member of the House of People. After the Sixteenth Amendment, under Art. 84(a). it was necessary for a person standing for election to either House of Parliament to take an oath in the fonn prescribed in the Third Schedule, TherefoN, a person standing for election as President had also to take a similar oath: since the respondent had not taken the oath he was not eligible for election. (ii) As (a) the Prime J\ilinister addressed a letter to all electors commending res~ pondent No. I and requesting them to vote for him; (b) the Prime Minister deputed Ministers to various State Capitals to make doubly certain that respondent-...No. 1 was elected; (c) a Minister who was also the chief whip of the Congress party wrote two letters to all members of his. party in Parliament and signed them as Chief Whip, explaining the situation with respect to the. election and requesting them to come to Delhi and corrtact him and also requesting th·em to give the first preference to respondent No. 1 and not to mark the second or any other preference in favour of the candidates; and (d) the Chief Minister of Maharashtra had briefed members of the Legislative Assembly as to how and for whom to vote, the result of the election has materially been affected by vndue inftuenoo. HELD : The petition must be dismissed. (i) The had not to President. candidate standing for election to the office of the President tak·~ any oath before becoming eligible for election as A comparison of Art. 58 with Art. 84 as it stood· before· the amendment shows that cl. (a) of Art. 84, corresponded to cl. (a) of Art. 58 ( 1). as both provided that the respective candidates should be citizeris of India. It was therefore, not necessary to go to cl. (a) of Art. 84 for the purpose of finding out whether a person w;.ts eligible for election as President for the purpose of citizenship for that partcof cl: (a). of Art. H-1 was specifically provided for in cl. (a) of Art. 58( 1). Similarly, cl. Cb) of Art. 84 corresponded to cl. (b) of Art. 58(1), with this Jiffci-ence that it provided a special qualificati9n as. ·10. ~tb"e and therefore· :J 34 SUl'R[ME COIJRT REPORTS [1968] 2 SCR one woul no reason why a 'imilar amendment was not made in Art. 58( 1) (a) and why the form of oath not also prescrihcd either in the Third Schcef Whip was of no consequence; even if he had not done so all members of the C,ongress party il-i Parliament must be knowing that he was the Chief Whip. Just as a Minister has a right to canvass for support, so has the Chief Whip. The fact th+i.t he asked the memb~rs to contact him after reaching Delhi could only be to know who had come and who had not and could not give rise to any infe~nce of undue influerlce from the fact alone. There was nothing in the second letter also to show that undue influence was being exercised thereby. Th·~ two letters read together merely show that the Chief Whip of the Congress party- was canvassing in favour of r~pondent No. 1. There was nothing improper in members of the party being told in the course of canvassing that it would be better if they only marked their first preforence and no other preference in a syst.em where voting is by single transferable vote. Such a re.quest or advice does not interfcra with the free exercise of their electoral right, for the electors still would be free to do what they desired inspite of the advice. [150B-151D1 (d) Thern can be no objection if the leader of the party indicates to the members of his party how to vote in order to ensure that votes may not become invalid for want of knowledge of the procedure of voting. Further if th·e leader of the party indicates to members of his party for whom to vote_. he -is merely canvassing with his own party men to support the candidate of the party. The mere fact that the μerson who canvass".!s is a Chief Minister does not mean that he is exercising undue influence in the sense of interfering with the free exercis~ of the electoral right. Once canvassing is permissible, and in a democratic set up where parties put up candidates for election it is not only pern1issible but necessary. it follows that if a leader of the party asks mem. hers of his party for \Vhom to vote he is merely canvassing. The voting is after aU scc.ret and every el·~ctor is free to vote for Whomsoever he likes, even though he mav have been asked by the leader to vote for a particular candidate. f152C-FJ 136 SUPREME COURT REPORTS [1968) 2 S.C.R. It j51 open to Ministers to canvass for candidates of their party standing for eJection. Such canvassing does not amount ·to undue influeoce but is proper use of the Minister's right to ask the public to support candidates belonging to the Minister's party. It is only where a Minislu abtJ.., his position as •uch and goes beyond merely asking for support for candidates belonging to his party that a question of undue influence may arise. But so loog as the Minister only art of the attack on the ground of undue influence, the truth of one of them was not accepted. But it is urged in the alternative that even accepting all that has been said by the petitioners in support of their case of undue influence, the allegations maJe by the petitioners do not in law amount to undue influence and therefore there could be no question of the result of the election being materially affected by tl)e exercise of any undue influence. On the pleading of the parties, the following issues were framed:- I. Whether the acceptance of the nomination papers of respondents Nos. 1 to 1 7 by the Returning Officer was illegal and contrary to law for the reason that Respondents Nos. I to 17 did not subscribe to the oath required under Artie!<' 84(a) of the Constitution read with Article 58(1 )(c) thereof; 2. Whether the result of the election has been materially affected; LIOScp,(Cl)/68~10 • 138 SUPREME COURT REPORTS [ 1968) 2 S.C.R . ~· Whether the acts and conduct alleged in para 12 of the petition and set out under heads A. B, C and D thereof amount to undue influence within the meaning of s. I 8{l)(b) of the Act. 4. Whether the allegations made under heads A, B, C and D in para J 2 of the petition in so far as they are not admitted arc; true: 5. Whether the petition is entitled to any relief, and ii so, to what relief. It will be seen that issues Nos. 1 and 3 raise pure questions of law. We made it clear to learned counsel that we would try this petition in two parts. We shall firs( deal with the two issues of law, and then. if necessary, set the petition down for further hearing on evidence. We also indicated that if issue No. 1 is decided in favour of the ~:titioners. the election would have to be set aside and then there 1-.•ould be no question of any further hearing on evidence. We further indicated that if issue No. 3 is decided in favour of the p:litioners, the petition would have to be set down for further hea;·ing on evidence on matters of fact which were in dispute. Lastly, we indicated that if both these issues were decided against the petitioners, the petition would fail and it would not be necessary then to set it down for further hearing on evidence. We propose now to consider the two issues of law. Issue No. I. In order to decide this issue, we !lave to sec what the Constitu· tion provided, before the Constitution (Sixteenth Amendment) Act, 1963 (hereinafter referred to as the Amendment Act). This Act Wl\~ passed on October 5, 196~. Before that amendment Art. 58 (I l with which we are concerned in the present petition was in these terms :- "(I) No person shall be eligible for election as President, unless he-. (a) is a citizen of India, ( b) has completed the age of thirty-live years, and ( c) is qualified for election as a member of the House of the People." Artide 84. which is also relevant read thus- " A person shall nov be qualified to be chos~n to fill a scat in Parliament unless heA B c D E F G (a) is a citizen of India; H (h) is. in the ca;e of a scat in the Council of States, not less than thirty years of age and, in the case A B c D E f G BABURAO v. ZAKIR HUSAIN ( Wanchoo, C.J.) 1:; 9 of the House of the People, not less than twentyfive years of age; (c) possesses such other qualifications as may be prescribed in that behalf by or, under any law made by Parliament." The Representation of the People Act, No. 43 of 195 l provided some qualifications for membership of the House of the People, by s. 4. Besides that Art. 102 of the Constitution provided for certain disqualifications for membership of either House of Parliament and thus indirectly provided for qualifications necessary for bei11i; a member of either House of Parliament, and these were-- ( l) that the person should not hold any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holders; (2) the person should not be of unsound mind and should not have been so declared_ by a competent court; (3) the person should not be an undischarged insolvent; (4) the person should not have voluntarily acquired the citizenship of a foreign State, or be under any acknowledgement of allegiance or adherence to a foreign State: and (5) the person should not be disqualified by or under any law made by Parliament. A perusal of these provisions show that there was no requirement of taking an oath at the time of nomination by the presidential candidate in Art. 58. Nor was there any requirement of taking any oath. at the time of nomination by a candidate for election to the House of the People under Art. 84. There were howe'f the People. But it is clear to us that what is provided in clause (a) and (b) of Art. 58(1) must be taken from ·there and we need not travel to els. (a) .and (b) of Art. 84 in the matti:r of citizenship and of age of the presidential candidate. Clauses (a) and (b) of Art. 58(1) having made a specific provision in that behalf in our opinion exclude els. (a) and (b) of Art. 84. This exclusion was there before the Amendment Act and we are of opinion that there is nothing in the Amendment Act which makes any difference to that position. The Sixteenth Amendment was introduced on the recommendation of the Committee on National Integration and Regionalism. which was greatly concerned over the preservation and maintenance of the integrity and sovereignty of the Union. It therefore recommended that every candidate for the membership of a State legislature or Parliament, should pledge himself to uphold the Constitution and to preserve the integrity and sovereignty of the Union and for that forms of oath in the Third Schedule to the Constitution should be suitably amended. It also recommended that every candidate for the membership of Parliament or State Legislature, Union and State Ministers, Members of Parliament and State Legislatures, Judges of the Supreme Court and High Court and the Comptroller and Auditor General of India should take oath to uphold the sovereignty and integrity of India. In consequence of these recommendations, the sixteenth amendment was made and Art. 84 (a) as well as Art. 173 which provides for qualifications for membership of State legislature were suitably 142 SUPREME COURT REPORTS [1968] 2 S.C.R. amended. Further two new forms were added in the Third A Schedule. one relating to oath to be taken by candidates for election to Parliament and the other relating to oath to be taken by candidates for election to State legislatures. Further other. forms of oath in the Third Schedule were also amended by addil)g therein the words "I will uphold the sovereignty and integrity of India."' Now if the intention of Parliament was that an oath similar in fom1 to the oath to be taken by persons standing for election to Parliament had to be taken by persons standing for election to the office of the President there is no reason why a similar amendment was not made in Art.· 58 ( 1 )(a). Further if the intention of Parliament was that a presidential candidate should al.so take an oath before standing for election, the form of oath should also have been prescribed either in the Third Schedule or by amendment of Art. 60, which provides for oath by a person elected as President before he takes his office. But we find that no change was made either in Art. 58(1){a) or in Art. 60 or in the Third Schedule prescribing the form of oath to be taken by' the presidential candidate before he could stand for electi0n. This to our mind is the clearest indication that Parliament did not intend, when making the Amendment Act, that an oath similar to t.he oath taken by a candidate standing for election to Parliament had to be taken by a candidate standing for election to the office of the President. So there is no rea .. Jn to import the provision of Art. 84(a) as it stood after the Amendment Act into Art. 58(1)(a), which stood unamended. That is one reason why. we arc of opinion that so far as the election to the office of the President is concerned, the candidate standing for the same has not to take any oath before becoming eligible for election as President: Another reason which leads to the same conclusion is this. We have already indicated that no change was made in Art. 60 by introducing the form of oath to be taken by a person standing for election as President; nor was there any change made in the Third Schedule by the introduction of a form of oath to be taken by a person standing for election as President. In the absence of such a form, we fail to see how an oath would be neecssary before a person could stand for election as President. It is not as if a person standing for election as a member of Parliament can take any oath that he likes or that may be administered to him. The particular oath which a person standing for election as a member of Parliament has to take has been prescribed in the Third Schedule to the Constitution, and it is only .that oath which such a person has to take. However no form of oath is prescribed for a person st.anding for election as President anywhere in the Constitution and in the absence of ~uch form, it is impossible to hold that taking of oath before standing for election as President is a B c E F G II A B c D E F G H BABURAO v~ ZAKIR HUSAIN (Watichoo, C.J.) 14:1 necessary ingredient of eligibility for such election. Further a comparison of the form of oath under Art. 60 for the President with form III-B of the Third Schedule which prescribes the oath for a member of Parliament before he takes his seat shows that even after election the President is not required to swear that he will uphold the sovereignty and integrity of India. The oath he takes is to preserve: protect and defend the Constitution and that he will devote himself to the service and well being of the people of India. Clearly therefore the form of oath introduced by the sixteenth amendment for persons standing for election to Parliament and even after election was not considered suitable for a person standing for election as President or elected as President and that is who/ we find no form prescribed by Parliament. It has been urged on behalf of the petitioners that, though no form of oath may be prescribed it was open to the Election Commission to prescribe an oath by making changes mutatis mutandis in form III-A of the Third Schedule relating to candidates for election to Parliament, and that it was the duty of the Election Commission to appoint somebody to administer the oath in the form to be evolved by him by changing form III,A in the Third Schedule mutatis mutandis. Reliance in this connection has been placed on Art. 324 of the Con$titution. We are of opinion that there is no force in this contention. Article 324 inter alia provides for "the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President". These words do not in our opinion give any power to the Election Commission to introduce a form of oath to be taken by a candidate for election whether it be for election as President or as a member of Parliament or of a State legislature. If an oath has to be taken by any .such person it has to be provided by law and the form thereof has. also to be prescribed by law--(we are using the word "law" in its broadest sense, including constitutional provisions) and that is what was done by the Sixteenth· Amendment so far as election to Parliament and State legislatures was concerned. But as already observed, Parliament did not think. it fit when it brought in the Amendment Act to make any change in Art. 58 (!) (a) or to introduce a form in Art. 60 or. in. the Third Schedule to the Constitution with reference to candidates standing for election as President. If Parliaml'nt did not choose to do so, the Election Commission cannot do so under the power it has been given under 'Art. 324 to superintendent, direct and control the preparation of the electoral rolls and the conduct of all elections. That power is very different from the power to prescribe an oath before a candidate can stand for election. Such prescription can only Be by law as indicated above. The Amendment Act having not made any such provision with SUPREME COURT REPORTS (1968] 2 S.C.R. respect to th°'e standing for election to the office of the President, it cannot be open to the Election Commission to prescribe a form of oath for such persons by changing form III-A mutatis mutandis. Such power cannot be spelt out of Art. 324 on which reliance has been placed on behalf of the petitioners. It follows therefore that no form whatsoever having been prescribed by Parliament when it made the sixteenth amendment for taking an oath by a presidential candidate. Art. R4 la) when it prescribed for taking an oath for candidates for election to the House of the People has no application 10 candidates standing for election to Prc.sidentship. So far as these candidates are concerned we mu'1 look to Art. 58 (I) (a) only and need not go to Art. 84(a). Another reason for coming to the same conclusion is that when Art. 58 I I) (c) lays down that a person standing for election as President has to be qualified for election as a member of the House of the People it only brings in qualifications other than those which arc specifically mentioned in Art. 58 (I) itself. Now specific qualifications provided in Art. 58 (1) arc that a candidate for presidential election has to be a citizen of India and he must have completed the age of 35 years. So far as these qualifications are concerned. we need not go anywhere else in order to search for eligibility to contest election as President. For example, the specific qualification in cl. (b) of Art. 58 (1) is that the person concerned should have completed the age of 35 years. On the other hand, cl. (b} of Art. 84 lays down the age of 25 years for membership of the House of the People. Therefore when one has to look for the qualification of age one must only go to Art. 58 (1) (b) for the purpose of presidential election and need not look elsewhere. What is specifically provided for by Art. 58 (I) mu.;t be accepted as it stands and no addition can be made to that provision and no subtraction can be made therefrom. It will be seen therefore that though there may be some qualifications which may be necessary for election to the House of the People, they need not necessarily apply to the election for the office of the President. where there is a specific provision in Art. 58 (I) itself. We arc therefore clearly of opinion that in view of the specific provision in Art. 58 (a) and (b} we cannot and should not apply clauses (a) and (b) of Art. 84. to persons standing for election as President. This conclusion is reinforced if we look at Art. 58 (2) and compare it with Art. 102 (I) (a). It is dear that when there is a specific provision with respect to an office of profit in Art. 58 (2). it is that provision which will apply and not Art. 102 ( 1) (a). We therdore. hold that the acceptance of the nomination papers of respondents 1 to 17 by the Returning Officer was neither illegal nor contrary to law on the ground that these respondents did not subscribe to an oath under Art. 84 (a) read with Art. 58( I }(c). The issue is decided against the petitioners. A II c D E F G H A ll c D E F G H BABURAO v. ZAKIR HUSAIN (Wane/zoo, C.J.) U5 lssUB No. 3 •. The petitioners rely on four ~negations on t~1e q~~tion o! undue influence. Before we deal with those allegations 1t 1s necessary to understand what undue influenc~ is in the context of th~ Act. Section 18 (1) (b) lays down that 1f the result of the electJon has been materially affected by reason of undue influence at the election committed by any person other than the returned candidate or a person acting in connivance with t.hc returned candidate, the election will be liable to be declared void. Sub-section (2) of s. 18 lays down that undue influence would have the same meaning as in Chapter IX-A of the Indian Penal Code. Section 171-C of the Indian Penal Code defines· what ""undue influence" is in these terms :- "(!) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election. (2) Without prejudice to the generality of the provisions of sub-section ( 1 ), whoever- ( a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or (b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure. or of spiritual censure, shall be deemed to interfere with the free exercise of fhe electoral right of such candidate or voter, within the meaning of sub-section ( 1). (3) A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section." It will be seen, from the above definition that the gist of undue influence at an election consists in voluntary interference or attempt at interference with the free exercise of .:my electoral right. Any voluntary action which interferes with or attempts to interfere with such free exercise of electoral right would amount to undue influence. But even though the definition in sub-s. (l) of s. 171-C is wide in terms it cannot take in mere canvassing in favour of a candidate at an election. If that were so, it would be impossible to run democratic elections. Further sub-s. (2) of s. 171-C shows what the nature of undue influence is though of course it does not cut down the generality of the provisions contained in sub-section (!). Where any threat is held out to any candidate or voter or any person in whoin a candidate or voter is interested and J.IG SUPREME COURT REPORTS [1968) 2 S.CR. the threat is of injury of any kind, that would amount to voluntary interference or attempt at interference with the free exercise of ~lectoral right and would be undue influence. Again where a person induces or attempts to induce a candidate, or voter to believe that he or any person ih whom he is interested will become <1r will be rendered an object of Divine displeasure or of spiritual c~nsure, that would also amount to voluntary interference with 1he free exercise of the electoral right and would be undue influence. What is contained in sub-s. (2) of s. J 71-C is merely illustr<1tive. It is difficult to lay down in general terms where mere .:anvassing ends and interference or attempt at interference with : he free exercise of any electoral right begins. That is a matter to be determined in each case; but there can be no doubt that if what is done is merely canvassing it would not be undue influence. As sub-section (3) of s. 171-C shows. the mere exercise of a legal right without intent to interfere with an electoral right would not he undue influence. We may in this connection refer to s. 123(2) of the Repre- 'entation of the People Act 1951 which also defines "undue influence". The definition there is more or less in the same language as in s.