# SIUV KlRP AL SINGH v. SHRI V. V. Gnu

- **Citation:** [1971] 2 S.C.R. 197
- **Court:** Supreme Court of India
- **Decided:** 1970-09-14
- **Bench:** S. M. Sikri, J. M. Shelat, V. Bhargava, G. K. MrrTER, c. A. v AIDI.ALINGAM
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/siuv-klrp-al-singh-v-shri-v-v-gnu-5313
- **Pages:** 195

## Headnote

Presidential and V~ce-Presidential Election Act 31 of 1952-Part 111
of A:t whether ~Itra V.ll'es Art. 71(1) of Constitution of India 1950--
£/ectton o~ Pres1~ent whether. c~n be challenged 011 grounds other thun
those mentwned ~~ s. 18-Validtty of s. 5(2)-Section whether ultra \ires
Art. 58 oj ConstJtutlon-Ca_ndi4ate signing his non_rination paper before
prof!o_ser or seconder-Nommatt~n paper whether /table to be rejectedll_altdtty of s. 21-Whether sectiOn suffers from vice of excessive delecatron of legislative power-'Undue influence' itJ s. 18 meaning of--5tatements within purview of s. 171 G cflndian Penal Code whether can also
/all under s. 111C-Comrivance by candidate of exercise of undue influ·
enu by others, proof-Material t!ffect on election, proof-Bribery, evidei'ICe of.
Costs-Election Petition-When cosl! may be refused,
Presidential and Vice-Presidemial Election Rules, 1952-Validity of
Rule:J 4( 1 )and 4(2)-Requiremellf that nominatio11 paper must be accompanied by certified copy of entry in electoral roll relating to candidate,
whether arbitrary and rmreasotwble and ultra vires 11, 21 of Act 31 of 1952
-Validity of rr. 4(3) and 6(3)-Requirement that elector shall nor
subscribe whether as proposer or seconder more than one nomination
paper a/ any election, whether contravene3 s. 5(2) of Act 31 of 19?2Certi/ied copy of electoral roll entry relating to candidate--Who can u.rue.
Corutitmion of India, 1950, Art. 58-Age of candidate for office of
Prtsidel'll of Jndia,-Minimum age prescribed as 35 year~-Entry In electoral roll showing candidate's age as above 35 years-Candt1at~s own statement as to date of birth showing he /11 below 35 years-ReJI!Ctton of nomination papu wht'fher justified.
Constitution of India, 1950, Arts. 54, 367, 372 and 3~1-A--Gmerol
Clause:J Act, s. 3(58)-Unlon Terrilory wltetlter 'State' wl/l11n meanf'g,:!
Art, 54--Elected member:J of LtJtl~·/atures of Union Terrllorles 'S'fde~~ of
num be Included In Electoral College for election to office o/ Pre
India,
.
. h ld • A
t 1969
The election to the office of President o[ I_ndia . c
10
u~~ main
Was challenged In five election petition! fil.:d 10 thJs f0~t
1·t"on of an
QU<.'Siion that 'fc iJ (or COmidcration WllS whether th~ d at;U~I ~ne of "tbo
anonymous pamphlet making defamatory statcmenh
ctitione,-, amount.
candida!~ at the election, In the manner alleged by, 1 e J'r s
18 ' of the
e(J to exercise of undue influence within the meamng f 195.; read witb a.
Pr~idential and Vice-Presidential Elec.tion Act ti~~ ~he Co;;rt bud furt~er
171 C of the Jndlan Penal Code. Jn thrblf~n~c~nd distributed bv the ~
to decide whether the pamphlet wos pu s c 811
orters and whethe~ .e
ning candidate or with his conn!vnncoir b~ ~lsby [);'0 publication aod d1s~;
t~ult of the election was maten~lly 8 ec e her uestions o! low I
bution "' the pamphlet in question.
Thep~ Jllqof Act 31 o! 1952 h~d
ft:ll ror eon~lderation were (i) whether
1~8,
SUPREME COURT REPORTS
[1~71) 2 S.C.R.
the effect of curtailing the jurisdiction of this Court under Art. 71(1) of
the Constitution and was therefore ultra vires; (ii) whether an election
under the Act could be challenged on grounds other than those mentioned
in s. 18 of Act 31 of 1952 which fell in Part III thereof; (iii)' whether
:->. 21 fJf the Act was void because of excessiv.!! delegation of legislative
power; (iv) whether r. 4(1) was ultra vires s. 21 and also void because it
was arbitrary and unreasonable; consequently whether :r. 4(2) was void;
(v) whether the prohibition in· r. 4{3) on an elector proposing or seconding more than one candidate was ultra vires s. 5(2) of Act 31· of 1952;
consequently whether s. 6(3) was yoid; (vi) whether nomination paper of
one of the candidates was rightly rejected when the electoral roll showed
the candidate's age as above. 35 years·but the candidate's own statement us
to his date of birth showed that he was below 35 years;
(vii) whether
certified copy of entry in electoral roll relating to candidat

## Text

_Characters 0–39,967 of 535,064. This is a partial read: ask again with offset=39967 for what follows._

A
'n
. c
D
E
F
G
SIUV KlRP AL SINGH
v.
SHRI V. V. Gnu
September 14, 1970
WITH CONNECTED PETITIONS
197
[S. M. SIKRI, J. M. SHELAT, V. BHARGAVA, G. K. MrrTER
:AND c. A. v AIDI.ALINGAM, JJ.J
Presidential and V~ce-Presidential Election Act 31 of 1952-Part 111
of A:t whether ~Itra V.ll'es Art. 71(1) of Constitution of India 1950--
£/ectton o~ Pres1~ent whether. c~n be challenged 011 grounds other thun
those mentwned ~~ s. 18-Validtty of s. 5(2)-Section whether ultra \ires
Art. 58 oj ConstJtutlon-Ca_ndi4ate signing his non_rination paper before
prof!o_ser or seconder-Nommatt~n paper whether /table to be rejectedll_altdtty of s. 21-Whether sectiOn suffers from vice of excessive delecatron of legislative power-'Undue influence' itJ s. 18 meaning of--5tatements within purview of s. 171 G cflndian Penal Code whether can also
/all under s. 111C-Comrivance by candidate of exercise of undue influ·
enu by others, proof-Material t!ffect on election, proof-Bribery, evidei'ICe of.
Costs-Election Petition-When cosl! may be refused,
Presidential and Vice-Presidemial Election Rules, 1952-Validity of
Rule:J 4( 1 )and 4(2)-Requiremellf that nominatio11 paper must be accompanied by certified copy of entry in electoral roll relating to candidate,
whether arbitrary and rmreasotwble and ultra vires 11, 21 of Act 31 of 1952
-Validity of rr. 4(3) and 6(3)-Requirement that elector shall nor
subscribe whether as proposer or seconder more than one nomination
paper a/ any election, whether contravene3 s. 5(2) of Act 31 of 19?2Certi/ied copy of electoral roll entry relating to candidate--Who can u.rue.
Corutitmion of India, 1950, Art. 58-Age of candidate for office of
Prtsidel'll of Jndia,-Minimum age prescribed as 35 year~-Entry In electoral roll showing candidate's age as above 35 years-Candt1at~s own statement as to date of birth showing he /11 below 35 years-ReJI!Ctton of nomination papu wht'fher justified.
Constitution of India, 1950, Arts. 54, 367, 372 and 3~1-A--Gmerol
Clause:J Act, s. 3(58)-Unlon Terrilory wltetlter 'State' wl/l11n meanf'g,:!
Art, 54--Elected member:J of LtJtl~·/atures of Union Terrllorles 'S'fde~~ of
num be Included In Electoral College for election to office o/ Pre
India,
.
. h ld • A
t 1969
The election to the office of President o[ I_ndia . c
10
u~~ main
Was challenged In five election petition! fil.:d 10 thJs f0~t
1·t"on of an
QU<.'Siion that 'fc iJ (or COmidcration WllS whether th~ d at;U~I ~ne of "tbo
anonymous pamphlet making defamatory statcmenh
ctitione,-, amount.
candida!~ at the election, In the manner alleged by, 1 e J'r s
18 ' of the
e(J to exercise of undue influence within the meamng f 195.; read witb a.
Pr~idential and Vice-Presidential Elec.tion Act ti~~ ~he Co;;rt bud furt~er
171 C of the Jndlan Penal Code. Jn thrblf~n~c~nd distributed bv the ~
to decide whether the pamphlet wos pu s c 811
orters and whethe~ .e
ning candidate or with his conn!vnncoir b~ ~lsby [);'0 publication aod d1s~;
t~ult of the election was maten~lly 8 ec e her uestions o! low I
bution "' the pamphlet in question.
Thep~ Jllqof Act 31 o! 1952 h~d
ft:ll ror eon~lderation were (i) whether
1~8,
SUPREME COURT REPORTS
[1~71) 2 S.C.R.
the effect of curtailing the jurisdiction of this Court under Art. 71(1) of
the Constitution and was therefore ultra vires; (ii) whether an election
under the Act could be challenged on grounds other than those mentioned
in s. 18 of Act 31 of 1952 which fell in Part III thereof; (iii)' whether
:->. 21 fJf the Act was void because of excessiv.!! delegation of legislative
power; (iv) whether r. 4(1) was ultra vires s. 21 and also void because it
was arbitrary and unreasonable; consequently whether :r. 4(2) was void;
(v) whether the prohibition in· r. 4{3) on an elector proposing or seconding more than one candidate was ultra vires s. 5(2) of Act 31· of 1952;
consequently whether s. 6(3) was yoid; (vi) whether nomination paper of
one of the candidates was rightly rejected when the electoral roll showed
the candidate's age as above. 35 years·but the candidate's own statement us
to his date of birth showed that he was below 35 years;
(vii) whether
certified copy of entry in electoral roll relating to candidate must under
the Rules be issued either by the Electoral Registration Officer. or the
-~ssistant Electoral' Regi~tration Officer; (viii) wh~ther a nomination paper
stgncd first by the candidate and thereafter by hts proposer and seconder
could be treated as valid; (ix) whether the elected representatives J~f the
Legislatures of Union Territories arc entitled to
be
included irt · · the
Electoral College for the election of President of India O'l the footing that
the word 'State' includes 'Union Territories'; (x) whether s. 5 (2) of Act
31 of ·1952 is ultra vires Art. 58 of the Constitution;
(xi)
whether .the
\)ffcncc of 'bribery' as alleged by the petitioners was shown to have been
committed and (xii) :whether in the circumstances of the case costs shduld
he awardeo to the winning party.
Dismissing the petitions,
HELD : (A) Per Sikri, Shelat and Vaidialingam, JJ. (Bhargava and
Mittce, JJ. dissenting) : (a) Though undue influence for purpose of s. 123
the Representation of the People Act. 1951 .has the same meaning as in
1hc present Act that section does not go as far as. s. 18 of the present Act
so as to provide that even if it is committed by a third party that is to
say not an election agent nor a person with the consent ~f tne returned
cant.lidate, the election ·.would still be declared to be void provideo it has
been materially affected by such undue influence.
Fron\ . tpe fact that
hoth these Acts were enacted by the sarrie legislature and Act·3I of 1952
was passed after the Representation of the People Act was passed, it is
dear that Parliament deliberately made s. 18 stricter than the Representution of the People Act. firstly, by using the word ''his consent" and secondly.
by including undue influence committed even by a stranger having nothing
to do with returned candidate as a ground for declaring the election to be
void, the only condition in respect of such an Act being that it should
have materially affected the election. The object of doing so is obvious.
namely. that Parliament wanted to ensure that in respect of an election
for the highest. Q.ffice in the realm the election should be completely free
~·rom any improper .liTfh~ ~manating even from a third party with whom
the returned canJidate had no eon~tion and without any connivance on
his part.
The only limitation placed in s. 18 is that in such a case It
has to be established that the election was materially affected. The que,;-
tions therefore which would arise under s. 18 would be : (1) Has the
nffen~c of und~e influence been committed ? ( 2) If so .. was it committed
by the returned cand·idate or by a person with his connivance? and (3·)
Even if the offence was committed by a stranger and without .the conninnce of the returned candidate. bas the committal of that offence by Guc:h ·
"any person'' materially affected the election~· [222 E-22381
The argument that s. 17l C of the Indian Penal Code does not apply
tll the first st~ge when the e_lcctor goes thro!t!!h the mental process of
weighing merits and Jemcnts of the candtdates but _only to. the second
stage when having maJc his choice be goes to cast hts vote tn favour of
A
B
c
D
E
F
G
H
A
8
c
D
F
G
H
S. K. SINGH V. SHRI V. V. GIRl
199
the candidate of his choice, cannot be accept~. The argument completely
disregards the structure and provisions of s. 171 C. The section "is en~ted
in three parts. The first stage contains the definition of undue influence.
This is in wide terms and renders a
person voluntarily interfering or
.1ttempting to interfere with 'the free exercise of any electoral right guilty
of committing undue influence..
That this is very wide is indicated by
the opening sentence of sub-s. (2) that is,
"without prejudice to the
generality of the provisions of sub-s. (1) ". It is well settled that when
~r .• ~ e"oression is used anything contained in the proivsions 'following this
expression is not intended to cut down the generality of the meaning of the
preceding provision. [224 G-225 B]
King Emperor v~ Sibnath Banerii {1945] F.C.R. 195, referred to.
It follows that sub-s. ( 1) has to be looked at as it is without Testricting
its provisions by what is contained in su~s. (2). Sub-s. (3) throv.'S a great
deal of light on this question. It proceeds on the assumption that a declaration of public policy or a promiSe of public action or the mere exercise
of a legal right can interfere with an electoral right, and therefore it provilles that if there is no intention to interfere with the electoral right it ahall
not be deelhed to be interference within the meaning of this section. Such
a declaration of public policy or the promise. of public action can only act
and tend to interfere at the stage•when a vottr is trying to make up his
mind as to which candidate he would support. [225 B-Dl
Sub-s. ( 3) further proceeds on the basis that t~e expression "free exer~
cise of the electoral right" does not mean that a voter is not to be iriftuenccd. This expression has to be read in the context of an election in a demoerath: society and the candidates and their supporters must naturally be
allowed to canvass support by all legal and legitimate means. This exercise
of the right by a candidate or his supporters to canvass support does not
interfere or attempt to interfere with the free exercise of the electoral right.
What dot\s however attempt to interfere with the exercise of an electOral
right is "tyranny over the mind". If the contention of the respondent was
to be accepted it would be quite legitimate on the p\U't of the candidate
or his supporters to hypnotise a voter an~ then· send him to vote. At th~
stage of casting his ballot paper there would be no pressure cast on him
because his mind has. already been made up for him by the hypnotiaer.
l225 B-Gl
From a reading of s. 171 G it is clear that in pursuit of purity of elections the legislature frowned upon attempts to assail such purity by means
of false statements relevant to the p'ersonal character and conduct of the
candidate and made such acts punishable thereunder.
But the fact that
making'of such a false statement is a distinct offence under s. 171 G does
not and cannot mean that it cannot take the graver form of undue influence
.punishable under s. 171F. The false statement may be of such virulent.
vulgar or scurrilous character that it would either deter or tend to deter
voters from supporting that candidate whom they would have supported in
the free exercise of their electoral right but for their bei-ng affected or
attempted to be affected by the maker or the publisher of such a statement.
Therefore, it is the degree of gravity of the allegation which will be the
determining factor in deciding whether it falls under s~ 171C or s. 171G.
If the alleption, though false and relating to a candidate's personal charncter or conduct: ma~e ':Vith the intent to affect the result of an election,
does not amount to. mterference or attempt at such interference, the offence
would be the Jesse~ one. . If! on the other hand, it amount~ to interferenc~
or an 1!-ttempt to mterfere 1t would be the graver offence under s 171F
read With s. 171 C. [225 D-{J]
_
'
200
SUPREME COURT REPORTS
[1971] 2 S.C.R.
The. above view is supported by the statement of objects :md reasons
attached to the bill which ultimately resulted in the enactment of Ch. IXA
of the Indian Penal Code, and by a number of decisions given on similar
staluto·ry provisions. [226 B-Hl
Amritsar City '(Mohammadan) Constituency Case No. 2-The Indian
Election Cases ( 1935-50) Dobia Vol. II, 150-157; .Tujhar Singh v. Bhairon
Lal 7 E.L.R. 457, 461; Radhakanta Mishra v. Nityanand Mahapatra, 19
E.L . .R. 203, ·and Baburao Patel v. Dr. Zakir Husc.'in, [1968} 2 S.C.R. 133,
145. referred to.
(b~ On the evidence in the case it must be held that the pamphlet in
question was distributed by post and in the Central Hall of Parliament by
some members of Parliament and there was wide rtiscussion about it in the
Central Hall.
The allegations in the pamphlet, made against one of the
losing candid~tes were covered under s. 171C I.P.C. even if they may be
covered under s, 1710. [231 F; 257 B)
The argument that the pamphlet cotttd not come under s. 171 C because
it. was anonymously distributed was fallacious. A series of anonymous
attempts in a country like ours wo11ld have as much if not more, effect as
one open power'ful attempt. It would be dangerous to provide a sanctuary
for anonymous attempts. Moreover, when members of Parliament distri·-
bute a pamphlet in the Central Hall it has the same effect as if they had
endorsed the pamphlet in writing. {231 H]
Accordingly it must be held that the distribution of the pamphlet by
post as also distribution in the Central Hall constituted an attempt to in·
terfere with the free exercise of the tight of vote within s. 18 of the Act.
[232 C)
A
B
c
D
(c) There was however no evidence to show that the respondent bad
E
any connection with the pamphlet or with its distribution. Nor was <'here
any evidence to show that anyone connected. with the distribution either
through the po:,t or in the Central Hall had any contact with the respondent.
er that he distributed it with his knowledge o~ c;:onnivanee.
[257 J:>r-:EJ
(d) It is well settled that the burden of proving that the result of the
election has been materially affected is O[l the petitioners. As held by tbi!l
F
Court in Samant N. Balkrishna v. George Fernandes, the matter cannot be
decided on possibility or reasonable judicial guess. There was no justification for over~ruliog that decision. [265 D-266 Cl
Vashl'st Narain v. Dev Chandra, [1955] 1 S.C.R, 509, Mahadeo v. Babu
UdtJi Prat(ip Singh; A.J.R. 1966 S.C. 824, Paokai Haikip v. Rishang C.A.
:~''· .683/1958 dt. 12-8-1968, G.K. Samal v. R. V. Rao, C.A. No. 1540/69
dt. ,20"1•197(}, S1mndra Nath Khosla v. Dalip Singh, [1957] S.C.R. 179•,
r~tie!-ti>n.: . . .
.
-r•·
. . .
SamatJt N. Balkrishna v. George Fernandes, A.I.R. 1969 S.C. 1201, n:-
~; _(· .. i .. ·•lftnn~• .. :. . ... ·.
.
G
12ri\/;':'{f-~bii·ti~:e\.1de~ce in tlie present case it was difficult to hold that the peti~
:.: · ·. ·· · : tloners had proved· that the publicatiof!. and di!(ribution of the pamp~l·et
:: :. : ·
. materially aflected.the result of the election. Jt only le~ds. tQ the conclusion
H
Y~~c· ·' .; that~it.:probably _d1d have some effect but the vast maJonty of t_he electo~s
"?'~.· • ·
w~ able to throw o1t the effect of the pamphlet and VC?te accordmg to tbeu-
. ' . .
~'Wit personal wiSh or according to the mandate of the1r party, [269 B........C]
; - I- ~
'-.·.
A
B
c
D
E
F
II
S. K. SINGH v. SHRI V. V. GIRl
201
Per Bhargava, J. : Sub-llection ( 1) of s. 171 C in general terms make&
any act an 'undue intluence' ·i!f it interferes or attempts to interfere with the
free exercise of any electoral right and if it is committed voluntarily. The
electchtl right according to the definition in s. 171A (b) is the right of a
voter to vote or refrain from voting.
Undue influence can be held to be
committed if the person charged with the offence interferes or attempts to
interfere wit~ the fri:e exercise of this right of voting or refraining from
voting. When an elector exercises the right of voting it can be envisaged
that he goes throug.'t the mental process of first taking a decision that he
will vote in favour of a particular candidate and thereaftelr, having made
up his mind, he has to go and exercise that electoral right by casting the
vote in favour of the candidate chosen by him. The language used in s.
171C indicates that the offence of undue inftuence comes in at the second
stage when the offender interferes or attempts to interfere with the free
exercise of that choice of voting in accordance with the decision already
taken bf the voter. It, therefore, follows that if any acts are done which
merely inftuence tho voter in making his choice between one candidate or
another, they will not amount to interference with the free exercise of the
electoral right. In fact all canvassing that is caiTied on and which is considered legitimate is intended to influence the choice of a voter at the first
stage and that i11 quite permissible. Once the choice ha·s been made by the
voter, there should be no interference with the free exercise by him of that
choice by actually casting the vote, or in the alternative the're may be cases
where a voter may decide that he will not vote. for any candidate at all but
some acts are done which compel him to cast his vote. It is in such easel!
that the offence of undue influence will be held to have been committed.
r32o B-GI
The language used in the definition of undue intluence implies that an
offence of undue influence will be held to have been committed if the elec·
tor having made up his_ mind to cast a vote for a particular candidate does
not do so because of the act of the offender, and this can only be if he is
under the threat or fear of some advelrse consequence. Whenever any
threat of adverse consequences is given it will tend to divert the elector
from freely exercising his electoral right by voting for the candidate chosen
by him for the purpose. In a case where the voter is threatened with an
injury as defined in the Indian Penal Code, it has to be deemed under s.
l71C (2) (a) that it interferes with the free exercise of the electoral right
of the voter and the same applies if the elector is induced or attempt is
made to induce him to believe that he or any person in whom he is interested will become olr will be rendered an object of divine displeasure or of
spiritual censure. There can, however, be cases where the threat may not
he of an injury as defined in s. 44 I.P.C., where the harm caused must be
illegal. [320 H-321 CJ
Mere propaganda against a candidate cannot be held to be exercise of
undue influence. The word free is used in "S. 171C I.P.C. as qualifying
exercise' and not as 'qualifying' the wdrd 'vote'. If undue influence had
been interference with the exercise of free vote, possibly the definition could
have been construed a3 indicating that influence brought on the mind of a
yoter so a~ to cha~ge the rnan~er of his voting by. affecting his choice and
JUdgment 10 selectmg the cand1date for whom he ts going to cast his vote
would be comprised within undue influence. The word free having been
used as qualifying the wor~ 'exercise' gives the indication that the freedom
envisaged is to cast the vote in accordance with the choice alreadv arrived
:tt and. if such freedom of cnsting the vote in that manner is interfered with
the offence of undue influence will be held to have been committed.
[322 A-CJ
The subject of influence at the stage of making a choice was dealt with
... . 202
SUPREME COURT REPORTS
[197) ]2 S.C.R. .
"in Ch. IXA of the Indian P.:nal Code under a separate anu distinct provi-
~ion which is contained in s. 171 G. This section clearly recognises, that, at
elections, the're is bound to be propaganda ,in which candidates or their
·supporters may be issuing statements so as to influence the voters against
their rival candidates, and it limits the' prohibition by law to only those
statements of fact which are false, or believed to be false, or believed not
to be true, in relation to the personal character or conduct of any candidate,
Thesi! false statements about the personal character and conduct of the
candidate may .of course be scurrilous and foul, but even theri.. the oft'enc&:
comn1itted· would faH under s. 171G I.P.C. which makes the offence punishable with the firie only. On the other ha'nd, an offen~o:e··of undue influence as
defined in s. 171C I.P.C. has been made punishable under s. 171F I.P.C.
with imprisonment of· either de-scription for a term which may extend to
one year or with fine, or with both_
If it is held that false propaganda ·
ugainst pe'rsonal C'haracter or conduct oCa ~didatc can amount to undue
influence the person indulging in that propaganda would -become liable to
punishment under s. 171F I.P.C. which has been considered a more serious
offence by being made punishable with imprisonment in addition to, or,
in the alternative with fine. This interpretation would thus make s. 171 G
l.P.C., totally ineffective and otiose.' 1f the false statements as to personal
character or conduct a're held to be punishable under s. 171F as constituting
the offence of~undue influence, there would b~ no point in prosecuting the
~"me person for the less serious o~~nce under s. J}JG.
[323 C-324 Al
In the Representation of the People Act. 195 t also. undue influence is
.defined in almost the samc ·languagc as that contained·in s. 171C l.P.C. Jn
that Act an eleCtion can be dedared void not only on the ground of commission of the corrupt practice of undue inlluencc. but also on the g:rc;i.md
of publication of false propaganda as to the personal character or conduct
of a candid,ate. Parliament, however, cho-se not to include any such provision in Act 31 of 1952 which was passed when the Representation of the
People Act, 1951 had already. been enacted and enforced. The omission
may be deliberate or accidental but. in either case, it is not for th; court
tn attempt to fill up this gap by enlarging the meaning to be given to the·
expre~sion ·undue influence' which is the corrupt practice included in the
Act as a ground for setting aside tht: election. It is clear from the scheme
of Ch. IXA of the Indian Penal Code that false propaganda as to the per~
sonal character and conduct of a candidate was created as a sepaJrate
·offence-and the definition given in s. 171C of undue influence was not in·-
tended to lay down that such propaganda will amount to interference with
the free exercise of electoral right so as to constitute undue influence. [324
F-325 A]
Case-law referred to.
(b.) In the present case the contents of the pamphlet in question did
not contain any threat of a nature which would constitute undue influence
as explained above. But even on the assumption that the publication of this
pamphlet could constitute undue influence the election of the respondent
was. not liable to be set aside because it had not been proved that the distribution by post or in the Central Hall of Parliament was with connivance
of the respondent dr had materially affected the result of the election. [337
·B-FJ
.
'. Per Mitter, J.-The only difference between the Act of 19~1 aDd tbe
Act of 1952 lies iri .the fact that under the latter Act corru!)t practice of
·. bribery and undue influence by one who was not a party to the electi~n
1)r his agent are also brought. in. But the nature and c~aracter of undue mfluence under both· the Acts remains the saJlle. There ts no reason for tak·
ing the view that what would not be undue influence under the Act of
1951 can become one un4er the Act of 1952.
[354 F-GJ
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If publication of any defamatory matter relating to a candidate was tobe treated as a direct or indirect interference or an-attempt to interference
with the exercise of any electoral right under the wide words of s. 171C(l)
there would have been no occasion for the legislature to provide for it
separately under s. 123 ( 4) of the Act of 1951. The same position would
obtain under the Act of 1952, and before any publication of defamatory
matter relating to a candi<tate can be treated as commission of the offence
of undue influence there must be some overt act in addition to the mere
publication, S('lme attempt or persuasion of a voter to restrain the free choice
of a candidate before the law of undue influence is excited.
[354H-35SBJ
The decided cases are sufficient to reject the respoqdent's contention
that in otd~r. to establish undue influence it must be shown that there was
some threat to a voter or at least an element of complusion in the appeal
to him. The case~ also show that it would be futile to attempt to lay down
a simple test applicable to all sets of facts and circum:stances where undue
influence is alleged to have been exercised. It can however be said that an
attempt on the part of anybody to deftect a voter's will away from a particular candidate by creating prejudice against or hatred for him, as for in- ·
s~ance by casting false aspersions on his personal conduct and character
whether by spoken words or in writing may be sufficient for the purpose of
establishing the commission of undue influence.. Much would however de·
pend on the nature of the attempt, the. position of the person making it, and
· the manner in which it is made. The mere publication by postal despatch
D
of an· anonymous but scurrilous pamphlet relating t<1 the personal character
of .a candidate to voters all and sundry might attract the operation of s.
1710 of the Indian Penal Code but would fall short of s. 171C. But if
such a pamphlet is pressed upon voters and methods of induj:ement applied
to- them, specially by others who are equally interested in the election.
different considerations may well arise. ln such a case a court of law may
legitimately hold that the dis~eminators of the pamphlet were attempting to
canalise or force the will of others away from the person whose. character
. was assailed.
[263 B-F]
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(b) There can be no doubt that a charge of undue inftuence is in the
nature of a criminal charge and must ·be proved by cogent and reliable
evidence not on the mere ground of balance of probability but on reason.
able certainty that the person'S charged therewith have
committed the
offence, on the strength of evidence which 1e~tves no scope for doubt as
to whether they had done so.
Although there are inherent difference~
betweeft tnc trial of an election petition and that of a criminal charge in
the matter of investigation. the vital point of identity for the two trials
i:o that the court must be able to come to the condusion beyond any
reasonable doubt as t& the commission of tht corrupt practice, However
onerous, the task of the court may be because of the partisan nature of
the witnesses it cannot reject the oral evidence adduced merely on that
ground, but it has to examine tl\e SMme carefully and come to a concbl·
sion whether the evidence establillhes the corrupt practice beyond reasonable doubt.
Even .in a criminal trial t~ coun can hold a person guilty
of a c,rime on the stn:ngth of evidence of partisan witnesses if they are
found to be reliable although there may be no independent corrobontion
therepf and there is no reason to depart from that prim:iple in the ·trial of
an eJection petition where charges of o«enees culpable under the Indian
Penal Code are levelled. [366 F-367 G)
Case-law refdrred to.
(-.b) ll\ the present case· althouah the pamphlet in question was defamatory, tile evidence fell short of any per!Onal appeal through the means
of .the pamphlet and it could not be held that the offence of undue influence
204
SUPREME COURT REPORTS
[1971] 2 S.C.R.
was committed by some people by merely distributing the same. Such
A
distribution may attract culpability under s. 171G of the Indian Penal
Code but would not per se attract s. 17IC. [380 D]
(b) Per Bhargava, J (Sikri, Shelat,
Mitter and Vaidialingam, JJ.
concurring) :
The contention that Part Ill of the Act is ultra vires Art. 71 (1 ) of
the Constitution on the ground that it purports to curtail the, jurisdiction
8
conferred on the Supreme Court to enquire into and decide all doubts
and disputes arising out of or in connection with the election ot. a President or Vice-President by laying down certain limitations such as the
grounds on which only the election of a President may be cha~enged in
an election petition, cannot be accepted. A similar contention was rejected by this Court in Dr. N. B. Khare's case. Even if it is accepted that
Art. 71 (1) lays down the jurisdiction of the Supreme Court, the manner
in which that jurisdiction is to be exer~ised can only be regulated by an
C
Act of Parliament passed in exercise of its power under Art. 71 ( 3). Jn
exercise of the power to regulate all matters relating to or connected with
· the election of a President or Vice-President, Parliament clearly had the
power of laying down the grounds on which the election can be challenged and set aside,
in addition to other matters rel:\tirlg to the election.
{295 B-297 BJ
Dr. N. B. Kh.are v. Election Commission of India, [1958} S.C.R. 648,
D
.applied.
The fact that Art. 71 ( 1) does not contain a provision corresponding
to that in Art. 329(b) which specifically mentions a law made for calling
1n question an election by an_ election petition, could not lead to an inference in support of the petitionelr's argument.
Article 329(b)
is a
provision which lays down a limitation on the manner in which an election can be called in question, while the procedure for calling in question
the election, as well as the grounds on which the election can be called
E
·in question, can only be hiid down by Parliament by a law passed under
Art. 327.
In the case of Art. 71, it appears that no need was felt of
makin~(a provision similar to Art. 329(b) when A'rt. 71(1) itself laid
·down the limitation that all doubts and disputes arising out of or in connection with the election of a President or Vice-President are to be inquired into and decided by the Supreme Court whose decision shall be
final. [297 C-G]
F
(ii) On the above .finding that Part III is not ultra vires, the .-:onten·
tion that the petitioners were entitled to challenge the election on ground~
other than those mentioned in s. 18 of the Act, must also fail.
~315 HJ
{iii) The power of making rules conferred on the Central Govern-·
ment by s. 21 of the Act is subject to two principles of guidance. One i~
that the .rules are to be made after consulting the Election Commission,
arid the second is that the Rules must be such as are needed for carrying
out the purposes of the Act.
Such power being already limited by tbe
purposes of the Act cannot be held to be unguided or even arbitra11·,
~ven though Parliament did not choose to lay down the requirement that
the Rules framed must be laid on the table of the two Houses of Parliament and should be subject to modification or annulment within a specifie
period.
In fact, Parliament all the time has power of altering the Rules
by amending the Act itself in case it disapproves any of the Rules made
by the Govet:nment, while a~~ Rule, which is shown to have been !llade
in contraventiOn of the prov1s1ons of the Act, would be declared vo1d by
the Court not on the ground that there was excessive delegation of !egi~-
lative power, but that it goes beyond the scope of the power conferred
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205
on the Government under s. 21 of the Act. Section 21 of the Act cannot
therefore be held to be void on any ground. [298 B-GJ
(iv) The contention that r.
4(1) of the Presidential & VicePresidential Rules 1952 is beyond the rule making power of tlte G<Wemment under s. 21 of the Act 31 of 1952 has no force. Clause (d) of subs. (2) of s. 21 lays down that the Rules made under that section may, in
particular, and without prejudice to the generality of the power granted
under sub-s. ( 1), provicte for the form and manner in which nominations
may be madt and the procedure to be followed in respect of the presentation of nomination papers; and the requirement that a certified copy of
the entry showing that the candidate being nominated is an elector for
a Parliame;::.~ary constituency which alone makes him eligible to stand aa
a candidate for the office of President or Vice-President must accompany
the nomination paper falls squarely within this clause. This requirement
relates to the man.ner of proving that the candidate is an elector in a
Parliamentary constituency.
In any case, this provision in r. 4(1) would
be fully covered by s. 21 (1) of the Act inasmuch as the requirement ia
fdr no other purpose except of ensuring a smooth and proper election to
the office of President .or Vice-President which object can be achieved
by enabling the Returning Officer to ensure that candidates, whose nomi·
nations are accepted by him, are eligible for election. [299 0-F]
Ranjit Singh v. Pritam Singh & Or:r. [1966] 3 S.C.R. 543 applied ..
The election to the office of a President or Vice-President mav not
coincide with or be very do'le to the time when there is general revision
of the electoral rolls, so that the electoral roll printed or published nearabout the time of. general elections may be out of date by the time the
election tor the office of a President or Vice-President is held. The published electoral roll may therefore be misleading if it is allowed to be
filed before the Returning Officer to show eligibility in the case of a
Presidential or Vice-Presidential election. That, seems to be the reason
why r. 4 (1 ) lays down that a certified copy of the entry alone will be
the proper mannct of satisfying the Returning Officer of the eligibility
of the candidate. The rule is therefore neither arbitrary nor unreasonable.
[301 B-E]
.
Acccudingly r. 4(1) must be held to be valid. Rule 4(2) which preacribes the consequence for non-compliance with the requirement of r. 4( 1)
must also be held to be valid as it is intended merely to make the valid
r. 4( 1) ~ective. [301 Fl
(v) The s'Obmission that s. 5(2) should be read as conferring any rlabt
either on the candidate or on the electon in respect of signing of nomi·
n11tion pape.;s cannot be accepted.
Had there. been an intention to eonfer a right on any of them the language would have been different aivina
such indication by layin& down what thP, candidate and the electors are
enritled to do in respect of a nomination paper. Obvioualy, s. 5 onlY
lays down the essential ingredients of the process of nomination1 leavin&
the details .of the manner of nomination to be filled up by llwes made
by the Oovmunent under s. 21 of the Act. Rule 4(3) which requires that
no elector shall sub5cribe whether as plroposer or seconder, more than
one nomination paper at any election, is thus, supplementary to s. 5(2)
as containing a more detailed direction in respect of filing of nomination
papers. [302 D-303A]
The fact that there is no ban in s. 5(2) of the Act on an elector
signing more than one nomination paper as a proposer or a seconder
does not, therefore, mean that r. 4(3) of the Rules could not have been
. ~ ...
206
SUPREME COURT REPORTS
[1971) 2 S.C.R.
com~tently made by the Government Rule 4(3). on
the
face
of it
. co~tams a very. reasonable direction. If there is only one vacancy for
wb1c~ election IS to be ~eld, an elector can reasonably be expected to
nommate only one candtdate as proposer and put him forward before
the other electors as a suitable person to be chosen.
Similarly,
when
seconding a nomination paper, an elector indicates his preference for that
candidate to the general electorate which is to cast votes at the election.
H the indication of such choice is restricted to as many candidates a~ there
are vacancies, the provision is, on the face of it .salutary and conducive
to proPE:r election. [303 H-304 BJ
The historical background of the Rules. relating to elections in lnc:tia
also bears out that such a prevision has always been considered desirable.
A similar provision exists in the Rules governing elections in England .
. [304 C-305 DJ
.
.
· .
:
In the circumstances it must be held that r. 4(3) of the Rules was
validly made by the Government in exercise of its rule making powe1:
under s. 21 of the Act~ that Rule being valid r. 6(3)(c) of the Rules
which is consequential, must also be held to be valid. [305 Hl
Amolok Chand v. Raghuvir Singh, [19'68] 3 S.C.R. 246, referred to. ·
(vi) The entry in the electoral roll showing a candid~.te as being
above 35 years of age has little value when the candidate's own statement
to the Returning Officer as to his date of birth shows that he is below
35 years of age. [306 E-FJ
(yii) There is nothing in the Rules framed under the Act or under
the Representation of the People Act, 1950 and Rules framed t~ereunder,
requiring that a certified copy of the eltctoral roll must necessarily be
issued by either an Electoral Registration Officer or ~-n~tant Electoral
Registration Officer. Every government servant, who · has custosly ·of a
document, is competent to
issue certified
copies of
that
document.
{;308 B] ·
(viii) When the Act was enacted in 1952, the law in India, as administci·ed bv various Election Tribunals, was clear that the order in which
signatures are made on a nomination paper by the candidate the proposer and the seconder is immateri~l and no nomination paper would
he invalid if the signaturi!S are ni1lde· by .the_candidate before the propuser and the seconder signed it.
The Legislatute, when enacting the
Act must be presumed to know that this w.as the law as intet'preted in
lradia and consequently, whcu the language incorporated in s. 5(2) of
lhe Act was used, it mu3t have been intended that nomination papers
would not be invalid by reason of the candidate making his signature
before the proposer and the seconder. r3I2 C-El
Therefore. in the present C!ISe.
the nomination
papers Of the
candidate who
signed 'his
nomination
paper
before
the
proposer
and tbe seconder
a!'; well
as those of the candidate who signeo
his. nomination paper 'before his seconder.
were rightly accepted.
[.312 F)
Case-law referred to.
(ix) The. argument thut the definition of ·state' in s. 3 (5!0 of the
General Chlllscs Act inclu<.lcs Union Territories and therefore the elected
members of the Legislative Assemblies of the Union Territories arc nls('
to be inciUlkll in the Electoral College. mu<.t he rejected. £3D D-El
It is ~rue that unJer Art. 36 7. the Gene'ral Clauses Act ap~Jlics for
interpretation of the ·con~litlltion as it . applies for ~he interpretation of
.m Act of the Lcgi~lature ot the Dom11110n of [n<.ha but that A~t ~a-:
been applied a<; it stood on ~nth January. 19:'0 when the Consti!UIIO~<
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came into force subject only to any adapta1ons and modifications that
may bt' made therein under Art. 3 72. The General a a uses Act as it
was defined State so as to include a Union Territory. This was done by
Art. 372 A which was introduced by the Constitution 7th Amendment
Act, 1956. The new definition of State in s. 3(5) of the General Clauses
Act as a result of the modifications and adaptations under Art. 37l(A)
wquld, no doubt, apply to the interpretation of all laws of Parliament
but it cannot apply to the intel'ijretation of the Constitution because Art.
367 wus not amended and it was not laid down that the General Clauses
Act as adapted and modified under any Article oth« than Art. 372 'M1l
also apply to Ole interpretation of the Constitution since its amendment
in 1956.
Since, until its amendment in 1956, Section 3(58) ol- the
General Clauses Act did not define 'State' as including Union Territories
for purposes of interpretation of Art. 54, the Union Territories cannot
be treated as included in the word 'State'. [313 E-314 BJ
Further the members of Houses known as Legislative Assemblies under
Art .. 168 can be members ot the Electoral College under Art. 54.
In
the case of Union Territories the provision for legislatures is contained
il1 Art. 239A but that Article does not mention that any house of the
legislature created for any Union Territories will be known a!' Legislative
Assembly.
All that that ,Article lays down is that Parliament may by
law create a body whether elected or partly nominated or partly elected
to function as a Legislature in the Union Territory. Such a Legislature
created by Parliament is not a legislative Assembly as contemplated under
Art. 168 or Art.