Meghalaya High Court
Shri. Conrad K Sangma vs Smt. D D Shira on 17 November, 2016
Equivalent citations: AIR 2017 (NOC)آ 601 (MEG.)
Author: Sr Sen
Bench: Sr Sen
1
THE HIGH COURT OF MEGHALAYA
AT SHILLONG.
MC(EP) No. 1 of 2016
In EL.PET. No. 1 of 2016
Shri Conrad K. Sangma
S/o Late Sh. P.A. Sangma
R/o Village Gandopara Balalgre,
P.O. Selsella,
P.S. Tura, West Garo Hills,
Meghalaya ... Applicant/Respondent
- Versus -
Smt. Dikkanchi D. Shira W/o Dr. Mukul Sangma R/o Chengkompura, P.O Ampati, South West Garo Hills, Meghalaya ... Opp. Party/Petitioner BEFORE THE HON'BLE MR JUSTICE SR SEN For the Election Petitioner : Mr. K.C. Mittal, Adv For the Respondent : Mr. A. Kashyap, Adv Date of hearing : 21.10.2016, 27.10.2016 & 28.10.2016 Date of Judgment & Order : 17.11.2016 JUDGMENT AND ORDER Heard Mr. K.C. Mittal, learned counsel for the Election Petitioner and Mr. A. Kashyap, learned counsel for the respondent.
2. The learned counsel for the election petitioner made an Application under Section 80, 80 A, and 81 read with Section 100 (1) (b) and Section 123 2 (2) of Representation of People Act, 1951 for declaring the election of the respondent who is the Returned/Elected candidate namely, Shri Conrad K. Sangma from 2-Tura (ST) Parliamentary Constituency as void.
3. The brief fact of the Election Petitioner‟s case in a nutshell is that:
"The Ministry of Rural Development, GOI, releases MGNREGA funds, a sum of Rs. 351,81,70,000/- (Rupees Three Hundred Fifty One Crore Eighty One Lakh and Seventy Thousand) only to the State Government of Meghalaya as Central assistance for implementation of the MGNREGA for the financial year 2016-17 and liquidating the pending Liability of wage component of financial year 2015-16 vide letter No. J-12027/1/2016-MGNREGA-IV Sl. No. 10 on 7th April, 2016.
On 21st April, 2016 GOI, Ministry of Rural Development further, releases a sum of Rs. 71,68,50,000/- (Rupees Seventy One Crore Sixty Eight Lakh and Fifty Thousand) only for implementation of the MGNREGA for the financial year 2016-17 vide letter No. J-12027/1/2016-MGNREGA-IV Sl. No. 28.
On 22nd April, 2016 issued Gazette Notification.
On 27th April, 2016 the Election Petitioner Smt. Dikkanchi D. Shira filed her nomination as a candidate nominated by Indian National Congress (INC). The respondent Shri Conrad K. Sangma also filed his nomination as a candidate nominated from the National People Party (NPP).
29th April, 2016 was the last date of nomination.
30th April, 2016 was fixed for scrutiny of nomination and the respondent through telephone had raised objections before the General Observer (G.O) of the Parliamentary Constituency that release of MGNREGA funds of Rs. 100 crores to the Constituency concerned would "mislead and give undue advantage to his rival candidate". The Respondent therefore, requested 3 the General Observer to defer the release of MGNREGA funds till the conduct of polls is completed.
Annexure-9 Page 52 of the Election Petition is the letter dated 30 th April, 2016 addressed to the Returning Officer from the General Observer seeking guidance and instructions on the issues raised by the respondent.
On 1st May, 2016 the respondent during his election rally at Rangsakana and Ampati is accused of making false and misleading statements that the State Government had failed to submit Utility certificate for MGNREGA schemes amounting to Rs. 300 crores to the Central Government.
Annexure-6 Page 45-46 of the Election Petition is the newspaper clipping dated 2nd May, 2016.
On the last date of withdrawal of candidatures i.e. 2 nd May, 2016 the Returning Officer (RO) declared the petitioner and the respondent as duly nominated candidates.
The Joint Chief Electoral Officer (JCEO), vide his letter dated 2nd May, 2016 which is at Annexure-12 Page 62 of the Election Petition states that the release of MGNREGA funds do not in any way violate the Model Code of Conduct.
(At Annexure-13, Page 65, of the Election Petition) the Returning Officer vide his letter dated 2nd May, 2016 clarified to the petitioner and the respondent that the release of funds under MGNREGA in the Parliamentary Constituency "should not attract violation of the MCC of the election, otherwise it may lead to deprivation of rural poor from getting their rightful wages".
On 4th May, 2016 (Annexure-14 of the Election Petition) it is alleged by the petitioner that ECI instructions were issued in reference to "SMS"
send by the DG, ECI pertaining to deferment of release of MGNREGA funds with instructions to refer the matter to ECI. Subsequently, the ECI through its Additional Chief Electoral Officer, Mr. W. Khyllep vide letter dated 4 th May, 2016 addressed to the Secretary, C & RD Department, Additional Mission Director, 4 State Rural Employment Society, stated that the ECI had issued instructions to defer the release of State funds under MGNREGA till further orders and also asking him to furnish information relating to monthly expenditure on MGNREGA, district wise, during the last one year, to enable them to take up the matter with the Election Commission.
On 1st May, 2016, 5th May, 2016, 6th May, 2016, 7th May, 2016 and 14th May, 2016 after the respondent had filed his objections with the General Observer on the 30th April, 2016 regarding disbursement of MGNREGA funds, the respondent is then accused by the petitioner of falsely stating during election rallies that the State Government led by the petitioner‟s husband, C.M. Dr. Mukul Sangma was responsible for failure to release MGNREGA funds to job card holders, thereby polluting the minds of the voters and exerting "undue influence" on the voters as defined under Section 123 (2) of Representation of People Act, 1951.
On 12th May, 2016 the ECI allows disbursement of the MGNREGA funds to job card holders in the said political constituency four dates prior to the polling date.
16th May, 2016 is the date of poll.
Hence, the Election Petitioner filed this instant Election Petition which was registered as Election Petition No. 1 of 2016.
4. Notice was issued to the respondent. In response to the notice, the respondent appeared through his counsel, Mr. A. Kashyap who filed an application under Order VII Rule XI of the Code of Civil Procedure, 1908 challenging the maintainability of the said Election Petition which was registered as MC (EP) No. 1 of 2016.
55. In reply to the maintainability application, a written objection was filed by the Opp. Party/Petitioner which is on record and the same came up for hearing on 21.10.2016, 27.10.2016 and 28.10.2016.
6. Mr. A. Kashyap, learned counsel appearing on behalf of the applicant/respondent submits that "the Election Petition must be against actions alleged to have been done by a candidate (Sec 81). In the present case both the impugned acts are of 27th April and 1st May 2016 i.e. before the candidates were declared as such duly nominated by the RO on 2 nd May 2016.
It is submitted that the (a) annexures to the present petition have not been signed or verified by the Election Petitioner and (b) there is no affidavit attached to the petition as required in support of allegation of Representation of the People Act, 1951. Being mandated by statute violation of requirements of Sec 83 is fatal to the maintainability of the present Election Petition and as such the present petition deserves to be dismissed at the threshold for violation of the aforementioned provision.
It is submitted that the present Election Petition fails to set out material facts regarding the alleged corrupt practices engaged in by the Respondent and as such the present petition deserves to be dismissed at the threshold under Order 7 Rule 11 of the Code of Civil Procedure, 1908 for want of cause of action.
It is submitted that the Freedom of Speech and Expression guaranteed under Article 19 (1)(a) of the Constitution of India is a fundamental right which, as per various judgments of the Hon'ble Apex Court, cannot be circumscribed by the provisions of the Representation of the People Act, 1951, especially Section 123 (2) and Section 123 (4). In a modern parliamentary democracy such as India, it is the duty of the 6 candidate contesting an election to bring forth, before the public, the malpractices, nepotism, corruption, etc practiced by the Government of the day and the same would be protected under the ambit of "fair opinion".
Under Section 123 (2), onus is placed on the Election Petitioner to not only show that the return candidate was involved in the commission of a "corrupt practice" by way of exercising "undue influence" on the electorate; the Election Petitioner also has to prove that such undue influence interfered with the free exercise of any electoral right. In the present case, the Respondent merely brought out the issues of lack of good governance by the Government of the day and as such the same cannot be construed to constitute "undue influence" on the electorate. Moreover, the election petitioner has not adduced any evidence to prove that the Respondent interfered with the free exercise of any electoral right in any manner whatsoever".
And to support his submission the learned counsel for the applicant/respondent also relied on the judgments passed by the Hon‟ble Supreme Court and the Hon‟ble High Court which are as under:
(i) T, Phungzathang v. Hangkhanlian and Ors. (2001) 1 GLR 404 Para 10 is quoted herein below for ready reference:
"10. Coming now to the contention of Mr. Nabakumar Singh, learned counsel for the election petitioner that the decisions rendered by the Supreme Court in the cases of Dr. Shipra and Harcharan Singh Joshi, are per incuriam inasmuch as the decision of the Supreme Court in Fa Sapa v. Singora, has been inadvertently not considered, in the case Fa Sapa v. Singora, there was no complaint of non compliance with the provisions of Section 83(3) of the RPA, 1951, and the complaint was with regard to non- compliance with the provisions of section 83(1) of the RPA, 1951, and the Supreme Court has held that section 7 83 is not one of three provisions mentioned in section 86(1) and therefore, ordinarily it cannot be construed as mandatory and the election petition cannot be dismissed on the ground of non-compliance with the provisions of section 83 of the RPA, 1951. In paragraph-29 of the said judgment in the case of Fa Sapa v. Singora (AIR 1991 SC 1557) the Supreme Court clearly held that so far as non-
compliance with section 81(3) is concerned, the consequences was fatal. In the language of the Supreme Court-
"... It must be remembered that non compliance with the requirement of subsection (1) or (3) of section 81 can prove fatal in view of section 86(1) of the RP Act. See Satya Narain v. Dhuja Ram (1974) 4 SCC 237: (AIR 1974 SCI 185), M Karunanidhi v. Dr. HV Handa, (1983) 2 SCC 473; (AIR 1983 SC 558), Mithilesh Kumar Pandey v. Baidynath Yadav, (1984) 2 SCR 278; (AIR 1984 SC
305), Rajender Singh v. Usha Rani (1984) 3 SCC 339; (AIR 1984 SC 956) and U.S. Sasidharan v. K. Karunakaran (1989) 4 SCC 482; (AIR 1990 SC 924). It is quite obvious from these decisions that the requirements of section 81(3) are mandatory and failure to comply with them would render the petition liable to summary dismissal under section 86(1) of the RP Act."
The decisions of the Supreme Court in the cases of Dr. Shipra and Harcharan Singh Joshi do not in any way conflict with the aforesaid decision of the Supreme Court in FA Sapa v. Singora. Rather, they are consistent with aforesaid decision in FA Sapa v. Singora, because it was held in the said decisions in Dr. Shipra and Harcharan Singh Joshi that absence of affirmation by the Oath Commissioner or the prescribed authority in the copy of the affidavit furnished to the respondents amounted to non-compliance with the provisions of section 81(3) and the election petition was liable to be dismissed summarily under section 86(1) of the RPA, 1951. The contention of Mr. Nabakumar Singh, learned counsel for the election 8 petitioner that the decisions of the Supreme Court in the cases of Dr. Shipra and Harcharan Singh Joshi are per incuriam is therefore misconceived and not tenable".
(ii) S L Paokhosei v. Ngamtheng and Ors. (1997) 1 GLR 370 Para 7, 8, 9, 11 & 17 are quoted herein below for ready reference:
"7. It is contended by Mr. A. Nilamani Singh that the Petitioner failed to disclose material facts in support of the allegations as visualized Under Section 83 of the Act, and therefore, the Election Petition is liable to be dismissed at the threshold. In support of his contention, Mr. Nilamani Singh has referred to the decision of the Supreme Court in Azhar Hussain, Appellant v. Rajiv Gandhi, Respondent, AIR 1986 SC 1253. There it was held by the Supreme Court as under:
"An election petition can be and must be dismissed under the provisions of Civil P.C. if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the election petition are not complied with. The Code of Civil Procedure applies to the trial of an election petition by virtue of Section 87 of the Act. Since CPC is applicable, the Court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11 (a). Therefore that Section 83 does not find a place in Section 86 of the Act which authorizes dismissal of election petitions in certain contingencies does not mean that powers under the CPC cannot be exercised. An election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil P.C. and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all."9
8. In Samar Singh, Appellant v. Kedar Nath and others, Respondents, AIR 1987 SC 1926, it was pointed out that, if an election petition does not disclose cause of action, it can be dismissed summarily at the threshold of the proceeding under Order 7 Rule 11 of the Code of Civil Procedure.
9. In U.S. Sasidharan, Appellant v. K. Karunakaran and another, Respondents, AIR 1990 SC 924, it was pointed out in para 12 of its judgment as under:
"It is apparent from Clauses (a) and (b) of Section 83 that an election petition shall contain a concise statement of the material facts and also set forth full particulars of any corrupt practice. These two requirements are also mandatory in nature. So, whenever there is an allegation of corrupt practice, the election petition shall contain a concise statement as to the material fact on which the Petitioner relies and also must set forth full particulars of the corrupt practice alleged by the petitioner."
11. Section 83 of the Act, as quoted above require concise statement of the material facts on which the Petitioner relies in an election petition filed Under Section 81. Clause (b) further mandates a petition to set forth full particulars of any corrupt practices that the Petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date of commission of each such practice. Consequences of lack of such allegations of material facts are fatal, because on such allegations, if proved, an election petition has the effect of declaring an election of returned candidate void. It is, therefore, vital that the corrupt charges against the Respondent should be full and in complete statement of material facts so that the returned candidate effectively put up the defence.
17. The allegations as referred to in para 4 of the statement No. 1 do not amount to any statement of material 10 facts of corrupt practices. It is not disclosed as to who are those government employees who canvassed and actively participated in the election campaign, when and where they canvassed and participated in the election campaign.
(iii) Anurag Narain Singh v. Narendra Kumar Singh Gaur (2006) 1 UPLBEC 874 Para 15, 19, 24, 39, 46 are quoted herein below for ready reference:
"15. In Samant N. Balakrishna v. George Fernandez . M. Hidayatullah, C.J. speaking for the Court laid down these propositions; First, Section 83 of the Act is mandatory and requires a concise statement of the material facts and then requires the fullest possible particulars; Second, omission of single material facts leads to an incomplete cause of action and the statement of claim becomes bad; Third, function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case, he will have to meet; Fourth; material facts and particulars are distinct matters, material facts will mention statement of facts and particulars will set out the names of persons with the date, time and place; Fifth, the material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture/cause of action; Sixth, in stating the material facts it will not do merely to quote the words of the section because then the efficacy of the material facts will be lost. The fact, which constitutes a corrupt practice, must be stated and the facts must be co-related to one of the head of the corrupt practice; seventh, an election petition, without the material facts relating to a corrupt practice, is not election petition at all. A petition, which merely cites the section, cannot he said to disclose a cause of action where the allegation is the obtaining or procuring of assistance unless exact type and form of assistance and the person from whom it is sought and the manner in which the assistance is to further the prospect of the election are alleged as statement of facts."11
19. Para 11 of the judgment summarized the proposition as follows:
"11. In views of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samat's case expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh's case the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition, therefore, can be and must be dismissed if it suffers from any such vice. The first ground of challenged must therefore fail.12
24. Coming to the facts of the case and the application under Order VII, Rule 11 CPC read with Section 86 of the Act under consideration the grounds on which the election petition is based and the statement of material facts, along with schedule is to be examined to find out whether the election petitioner has set forth particulars of any corrupt practice that he alleges as full a statement as possible with sufficient details to furnish a cause of action. In other words whether all the essential facts to complete the cause of action have been pleaded.
39. Sub-section (2) of Section 123 of the Act which defines undue influence as corrupt practice or challenging an election and which is one of the ground of challenge of this election petition is quoted as below;
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:
Provided that-
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) 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 13 deemed to be interference within the meaning of this clause.
46. The election petition as such does not disclose the material facts and particulars, constituting cause of action to challenge the election on corrupt practices. The election petition in the present case is an incomplete document. It does not contain concise statement of material facts with the fullest possible particulars. The pleadings do not lead to a complete cause of action or present full picture of cause of action to make the respondent understand the case, he has to meet. The election petition as such liable to be dismissed under Order VII, Rule 11 C.P.C. read with Section 86(1) of the Representation of People Act 1951."
(iv) Kultar Singh v. Mukhtiar Singh: (1964) 7 SCR 790 Para 17 is quoted herein below for ready reference:
"17. Before we part with this appeal, we may refer to a recent decision of this Court in Jagdev Singh Sidhanti v. Pratap Singh Daulta and Ors. A.I.R. 1963 S.C. 183. In that case, the election of the successful candidate was challenged on the ground that he had committed a corrupt practice under s. 123(3) of the Act in that he had appealed to the voters to vote for him on the ground of his language, and the High Court had upheld that contention. In reversing the conclusion of the High Court, this Court pointed out that the reference to the language on which the challenge to the successful candidate‟s election was based, had to be considered in the context of the main controversy between the parties and that controversy was that the Hariana Lok Samiti which had sponsored the candidature of the successful candidate wanted to resist the imposition of Punjabi in the Hariana region and that was clearly a political issue. If in propagating its views on such a political issue, a candidate introduces an argument based on language, the context of the speech in which the consideration of language has been introduced must not 14 be ignored, and that is how this Court held that the corrupt practice alleged against the successful candidate had not been established. Political issues which form the subject- matter of controversies at election meetings may indirectly and incidentally introduce considerations of language or religion, but in deciding the question as to whether corrupt practice has been committed under s.123(3), care must be taken to consider the impugned speech or appeal carefully and always in the light of the relevant political controversy. We are, therefore, satisfied that the High Court was in error in coming to the conclusion that the impugned poster Ext. P-10 attracted the provisions of S. 123(3) of the Act."
(v) Aad Lal v. Kanshi Ram: (1980) 2 SCC 350 Para 11 is quoted herein below for ready reference:
"11. It has to be remembered that it is an essential ingredient of the corrupt practice of "undue influence"
under Sub-section (2) of Section 123 of the Act, that there should be any "direct or indirect interference or attempt to interfere" on the part of the candidate or his agent, or of any other person with the consent of the candidate or his agent, "with the free exercise of any electoral right". There are two provisos to the sub-section, but they are obviously not applicable to the controversy before us. It was therefore necessary, for the purpose of establishing the corrupt practice of "undue influence", to prove that there was any direct or indirect interference or attempt to interfere with the exercise of any electoral right. There is, however, no such allegation in the election petition in paragraph 11 which was the subject-matter of issue No. 3 in the trial Court. A mere allegation that false figures were supplied or distributed in the form of a handbill (or poster) even if true, cannot be said to fall within the mischief of sub-section (2) of Section 123, for that would not, by itself, amount to interference or attempt at interference with the free exercise of an electoral right. It cannot therefore be said that the appellant has succeeded in alleging or proving the commission of the corrupt practice which were the subject-matter of issue No. 3."
15(vi) Lalit Kishore Chaturvedi v. Jagdish Prasad Thada: AIR 1990 SC 1731 Para 7, 8, 9 and 11 are quoted herein below for ready reference:
"7. Law being thus the pleadings in election petition may be set out to ascertain if they satisfied requirements of Section 123(4) as analysed in Sheopat Singh v. Ram Pratap (1965) 1 SCR 175: (AIR 1965 SC 677) namely, if the leaflet was publication of any statement of fact that the fact mentioned in leaflet was false, that the appellant believed it to be false or did not believe it to be true, that the statement was in relation to personal character or conduct of the Congress candidate and the statement in leaflet was one reasonably calculated to prejudice the prospects of the Congress candidate. Relevant paragraphs of 3(i) and (j) of the petition are extracted below:-(i) "That the election of the respondent No. 1
is also liable to be set aside on account of the following corrupt practice namely; the respondent No. 1 published the pamphlets (submitted herewith and marked as Annexures 4 & 5 and circulated the same in the Vidhan Sabha Nirwachan Kshetra, Kota (107) in which with a view to unduly influence the electors from exercising their electoral right in a free and fearless manner by making out false propaganda threatening them of dire consequence knowing fully well that such statements were absolutely false. By the second pamphlet, inducement to vote for the Respondent No. 1 was given offering certain facilities in case the Respondent No. 1 was voted and declared elected.
Whereas, in the case petitioner is declared elected, would on the contrary impose undue harsh taxation and thereby inducing through mis-representation and false propaganda the electors not to cast their votes in favour of the petitioner and to cast their votes in favour of the Respondent No. 1. By these acts, the 16 Respondent No. 1 along with his agents and party workers Shri Damodar Prasad published and circulated the aforesaid material threatening the electors with injury to the extent of demolition of their houses in case the respondent No. 1 was not declared elected. By these acts, the respondent No. 1 is guilty of corrupt practices as laid down under the Act rendering himself disqualified from being declared elected and rendering his election void on account of the same.
That, the respondent No. 1 on 3-3-1985 at about 5 P.M. at Khudlu, Ward No. 7, Civil Lines, Kota, addressed general public in a meeting stating that "If Congress comes in power. If Thada is elected house tax would be imposed, as Thada is in favour of imposition of house tax. There is no difference between Thada and Dhariwal, if Thada is voted, these two personalities of Kota would incur their wrath upon the poor persons and their hutments shall be razed to ground by bulldozers.' The respondent No. 1 through his speech influenced the voters not to cast their votes in favour of the petitioner. Before the said speech leaflets (Ann.4 &
5) were distributed by the election agent Shri Krishna Gopal Gupta and other agents of the respondent No. 1 to the knowledge of the respondent No. 1 himself. Almost the same type of speech was made by Shri Krishna Gopal Gupta, the election agent of the respondent No. 1. Similar such meetings were held by the respondent No. 1 and the election agent and other supporters on 3-3-1985 at 7 P.M. at Sanjay Nagar Bhimganjmandi, at 7 P.M. at Ganwade and at 8 P.M. at Distpura (Ward Civil Lines) on 4-3-85 at about 5 P.M. at Adarsh Nagar Kachi Basti, the respondent No. 1 again repeated that Shri Thada is a dangerous person, if he is elected, he would get all the Kachi Bastis demolished."
178. What is striking is that there is no allegation that the leaflet purported to refer to personal character of the respondent. Distinction between personal character and political character of a candidate has been brought out in Ram Chand Bhatia v. Har Dyal (1986) 2 SCC 121: (AIR 1986 SC 717). It was held that adverse and undignified criticism does not come within the meaning of corrupt practice under Section 123(4). Averments in paragraph (i) and (j) extracted above, omitting legal expression, such as false and undue influence, were that the appellant got the pamphlets published and circulated and in case the respondent was elected the house-tax should be imposed and electors houses shall be erased to the ground. None of these could be said to reflect on personal character of the respondent. In G.S. Balliram v. Vithalrao (1969) 2 SCR 766: (AIR 1970 SC 1841), the two pamphlets which referred to the candidate by name who was responsible for imposition of toll tax and during whose tenure no taccavi could be paid to the cultivator without giving bribe, who protected interests of contractors and neglected poor citizens were held not to relate to personal character or conduct of the candidate.
9. Similarly even though it was pleaded that the leaflets were false but there is no whisper if the appellant believed it to be false or did not believe it to be true. The petition is silent on the vital aspects if any meeting took place on 1st March, 1985 and whether Congress M.P. participated in it. Merely pleading false, more statement of law than fact, without necessary factual foundation could not be said to give rise to any triable issue. Attempt was made to argue that even if the first part of speech was taken to be correct the second part using the words "inke" and "inhone" clearly referred to personal character of the candidate and that being false a triable issue arose. Assistance was sought from observations, shorn of their context, in Avtar Singh Brar v. Tej Singh (1984) 2 SCR 415: (AIR 1984 SC 619) and Manubhai Nandlal Amersey v. Popat Lal Manilal Joshi (Supra) (AIR 1969 SC 734) in 18 support of the submission that even without mention of name of candidate it may be established that it related to him. True, but that is at later stage, stage when evidence is led in support of the petition. What is germane in this petition is if the averments made in this petition prima facie raised any cause of action. Extract in first part of the leaflet is either correct or false. For either necessary averments are missing. If the first part is omitted then second does not make any sense. And to make it intelligible if the top of the leaflet is read with last part then it refers to congress party and not to candidate. If the first part, namely, the speech was correct then the second part becomes an opinion and not a statement of fact as was held in Kumaranand v. Brij Mohan Lal Sharma (1967) 2 SCR 127: (AIR 1967 SC 808). In either case the pleadings were wholly vague and insufficient to raise any adjudicatory issue. Averments in paragraph 3(j) relating to distribution and circulation did not remove the defect in pleadings under Section 123(4). In the absence of denial of meeting on 1st March, 1985, and necessary averments about the knowledge of appellant that the leaflet was false, which he believed to be false, or did not believe it to be true, the respondent could not have succeeded even if the appellant would not have put in appearance, therefore it is squarely covered by the principle laid down in Azhar Hussain's case Supra (AIR 1986 SC 1253). Mere allegations that the appellant got a leaflet published which was false or it was false to the knowledge of the appellant did not meet the requirements of Section 83(1)(b). It was neither precise statement of fact nor furnishing of material facts or particulars as far as possible. Even this much was not said that no meeting took place on 1st March, 1985. No facts or circumstances were mentioned to give even the haziest picture for the basis of averment that the leaflet was false to the knowledge of the appellant or that he did not believe it to be true.
11. Although much was argued on 123(2) but no specific pleading could be pointed out in this regard. No details of 19 undue influence or direct or indirect interference by the appellant, or his agent, with his consent with free exercise of electoral right was raised. In fact guilt under Section 123(2) was attempted to be made on same pleading, namely, paragraph 3(i)(j). The ingredients of the two being different they were to be pleaded specifically and the details were to be furnished separately to give a clear picture of cause of action. Undue influence is an inference which arises on facts pleaded and proved. Mere averment that appellant exercised undue influence in the absence of precise facts, namely the nature of such influence, the persons on whom it was exercised and time and place of it the pleadings in paragraphs (i) and (j) fell short of the requirement in law. Allegations fishing and roving, as were pleaded in this case could not be said to be sufficient compliance of Section 83(1)(b).
(vii) Krishnamoorthy v. Sivakumar and Ors. (2015) 3 SCC 467 at Para 29, 30, 48, 52, 53, 66, 86 are quoted herein below for ready reference:
"29. The aforesaid decisions pronounce beyond any trace of doubt that a voter has a fundamental right to know about the candidates contesting the elections as that is essential and a necessary concomitant for a free and fair election. In a way, it is the first step. The voter is entitled to make a choice after coming to know the antecedents of a candidate a requisite for making informed choice. It has been held by Shah, J. in People's Union for Civil Liberties v. Union of India, (2003) 4 SCC 399 (SCC p.453, para 78) that the voter's fundamental right to know the antecedents of a candidate is independent of statutory requirement under the election law, for a voter is first a citizen of this country and apart from statutory rights, he has the fundamental right to know and be informed. Such a right to know is conferred by the Constitution.20
30. Speaking about the concept of voting, this Court in Lily Thomas v. Speaker, of Lok Sabha (1993) 4 SCC 234, has ruled that:
"2. ...Voting is a formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question [and that] 'right to vote means right to exercise the right in favour of or against the motion or resolution. Such a right implies right to remain neutral as well."
48. In Ram Dial v. Sant Lal, AIR 1959 SC 855: 1959 Supp (2) SCR 748 while discussing about the facet of undue influence, the three-Judge Bench distinguished the words of English Law relating to undue influence by stating that the words of the English statute lay emphasis upon the individual aspect of the exercise of undue influence. Thereafter, the Court proceeded to state about the undue influence under the Indian law by observing thus: (AIR p.859, para 8) "8. ...The Indian law, on the other hand, does not emphasize the individual aspect of the exercise of such influence, but pays regard to the use of such influence as has the tendency to bring about the result contemplated in the clause. What is material under the Indian law, is not the actual effect produced, but the doing of such acts as are calculated to interfere with the free exercise of any electoral right.
Decisions of the English courts, based on the words of the English statute, which are not strictly in pari materia with the words of the Indian statute, cannot, therefore, be used as precedents in this country." (emphasis supplied) After so stating, the Court considered the submission that a religious leader has as much the right to freedom of speech as any other citizen and, that, 21 therefore, exhortation in favour of a particular candidate should not have the result of vitiating the election. Elaborating further, it has been held: (Ram Dial case AIR 1959 SC 855: 1959 Supp (2) SCR 748, AIR p. 860, para 10) "10. ... the religious leader has a right to exercise his influence in favour of any particular candidate by voting for him and by canvassing votes of others for him. He has a right to express his opinion on the individual merits of the candidates. Such a course of conduct on his part, will only be a use of his great influence amongst a particular section of the voters in the constituency; but it will amount to an abuse of his great influence if the words he uses in a document, or utters in his speeches, leave no choice to the persons addressed by him, in the exercise of their electoral rights. If the religious head had said that he preferred the appellant to the other candidate, because, in his opinion, he was more worthy of the confidence of the electors for certain reasons good, bad or indifferent, and addressed words to that effect to persons who were amenable to his influence, he would be within his rights, and his influence, however great, could not be said to have been misused. But in the instant case, as it appears, according to the findings of the High Court, in agreement with the Tribunal, that the religious leader practically left no free choice to the Namdhari electors, not only by issuing the hukam or farman, as contained in Ext. P- 1, quoted above, but also by his speeches, to the effect that they must vote for the appellant, implying that disobedience of his mandate would carry divine displeasure or spiritual censure, the case is clearly brought 22 within the purview of the second paragraph of the proviso to Section 123(2) of the Act."
In view of the aforesaid analysis, the Court dismissed the appeal and affirmed the decision of the High Court whereby it had given the stamp of approval to the order of Election Tribunal setting aside the appellant‟s election.
52. In Shiv Kirpal Singh v. V.V. Giri (1970) 2 SCC 567, the majority while interpreting Section 18 of the Presidential and Vice-Presidential Elections Act, 1952 (for short, „the 1952 Act‟) in the context of Section 171-C I.P.C, expressed thus: (SCC p. 590, para 32) "32. ... In our opinion, if distribution of the pamphlet by post to electors or in the Central Hall is proved it would constitute "undue influence" within Section 18 and it is not necessary for the petitioners to go further and prove that statements contained in the pamphlet were made the subject of a verbal appeal or persuasion by one member of the electoral college to another and particularly to those in the Congress fold."
After so stating, the Court drew distinction between Section 18 of the 1952 Act and Section 123 of the 1951 Act. It referred to Chapter IX-A of the Penal Code, 1860 which deals with offences relating to elections and adverted to the issue of undue influence at elections as enumerated under Section 171-C. The argument that was advanced before the Court was to the following effect: (Shiv Kirpal Singh case (1970) 2 SCC 567, SCC p. 592, para 36) "36. ...the language of Section 171-C suggests that undue influence comes in at the second and not at the first stage, and therefore, it can only be by way of some act which impedes or obstructs the elector in his 23 freely casting the vote, and not in any act which precedes the second stage i.e. during the stage when he is making his choice of the candidate whom he would support. This argument was sought to be buttressed by the fact that canvassing is permissible during the first stage, and, therefore, the interference or attempted interference contemplated by Section 171-C can only be that which is committed at the stage when the elector exercises his right i.e. after he has made up his mind to vote for his chosen candidate or to refrain from voting. It was further argued that the words used in Section 171-C were „the free exercise of vote‟ and not „exercise of free vote‟. The use of those words shows that canvassing or propaganda, however virulent, for or against a candidate would not amount to undue influence, and that under influence can only mean some act by way of threat or fear or some adverse consequence administered 51 at the time of casting the vote."
Repelling the said contention, the Court held thus:
(Shiv Kirpal Singh case v. V.V. Giri, (1970) 2 SCC 567, SSC p. 592, para 37)
"37. We do not think that the legislature, while framing Chapter IX-A of the Code ever contemplated such a dichotomy or intended to give such a narrow meaning to the freedom of franchise essential in a representative system of Government. In our opinion the argument mentioned above is fallacious. It completely disregards the structure and the provisions of Section 171-C. Section 171-C is enacted in three parts. The first sub-section contains the definition of „undue influence‟. This is in wide terms and renders a person voluntarily 24 interfering or attempting 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-section (2) i.e. „without prejudice to the generality of the provisions of sub-section (1)‟. It is well settled that when this expression is used anything contained in the provisions following this expression is not intended to cut down the generality of the meaning of the preceding provision. This was so held by the Privy Council in King Emperor v. Sibnath Banerji (1944045) 72 IA 241: AIR 1945 PC
156."
After so stating, the Court proceeded to lay down as follows: (Shiv Kirpal Singh case v. V.V. Giri, (1970) 2 SCC 567, SSC p 592-93, paras 38-40) "38. It follows from this that we have to look at sub-section (1) as it is without restricting its provisions by what is contained in sub-section (2). Sub-section (3) throws 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 provides that if there is no intention to interfere with the electoral right it shall not be deemed to be interference within the meaning of this section. At what stage would a declaration of public policy or a promise of public action act and tend to interfere? Surely only at the stage when a voter is trying to make up his mind as to which candidate he would support. If a declaration of public policy or a promise of public action appeals to him, his mind would decide in favour of the candidate who is propounding the public policy or promising a 25 public action. Having made up his mind he would then go and vote and the declaration of public policy having had its effect it would no longer have any effect on the physical final act of casting his vote.
39. Sub-section (3) further proceeds on the basis that the expression „free exercise of his electoral right‟ does not mean that a voter is not to be influenced. This expression has to be read in the context of an election in a democratic society and the candidates and their supporters must naturally be allowed to canvass support by all legal and legitimate means. They may propound their programmes, policies and views on various questions which are exercising the minds of the electors. 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 does, however, attempt to interfere with the free exercise of an electoral right is, if we may use the expression, „tyranny over the mind‟. If the contention of the respondent is to be accepted, it would be quite legitimate on the part of a candidate or his supporter to hypnotise a voter and then send him to vote. At the 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 hypnotiser. [It was put like this in a book on Elections:] „The freedom of election is two-fold; (1) freedom in the exercise of judgment. Every voter should be free to exercise his own judgment, in selecting the candidate he believes to be best fitted to represent the constituency; (2) freedom to go and have the 26 means of going to the poll to give his vote without fear or intimidation‟ Nanak Chand, Law and practice of elections and election petitions (1937 edn.), p. 362; Nanak Chand, Law of elections and election petitions (1950 edition) pg. 263.
40. We are supported in this view by the Statement of Objects and Reasons attached to the bill which ultimately resulted in the enactment of Chapter IX-A. That statement explains in clear language that „undue influence was intended to mean voluntary interference or attempted interference with the right of any person to stand or not to stand as or withdraw from being a candidate or to vote or refrain from voting, and that the definition covers all threats of injury to person or property and all illegal methods of persuasion, and any interference with the liberty of the candidates or the electors‟. "The Legislature has wisely refrained from defining the forms interference may take. The ingenuity of the human mind is unlimited and perforce the nature of interference must also be unlimited."
(emphasis supplied)
53. In Bachan Singh v. Prithvi Singh (1975) 1 SCC 368, there was a publication of posters bearing the caption "Pillars of Victory" with photographs of the Prime Minister, Defence Minister and Foreign Minister. It was contended before this Court that the publication of the poster not only amounted to the exercise of "undue influence" within the contemplation of Section 123(2) but also constituted an attempt to obtain or procure assistance from the members of the armed forces of the Union for furtherance of the prospects of returned candidate‟s election within the purview of Section 123(7). The Court, treating the contention as unsustainable held thus: (SCC p. 372, paras 19-20) 27 "19. Doubtless the definition of „undue influence‟ in sub-section (2) of Section 123 is couched in very wide terms, and on first flush seems to cover every conceivable act which directly or indirectly interferes or attempts to interfere with the free exercise of electoral right. In one sense even election propaganda carried on vigorously, blaringly and systematically through charismatic leaders or through various media in favour of a candidate by recounting the glories and achievements of that candidate or his political party in administrative or political field, does meddle with and mould the independent volition of electors, having poor reason and little education, in the exercise of their franchise. That such a wide construction would not be in consonance with the intendment of the legislature is discernible from the proviso to this clause. The proviso illustrates that ordinarily interference with the free exercise of electoral right involves either violence or threat of injury of any kind to any candidate or an elector or inducement or attempt to induce a candidate or elector to believe that he will become an object of divine displeasure or spiritual censure. The prefix "undue" indicates that there must be some abuse of influence. „Undue influence‟ is used in contradistinction to „proper influence‟. Construed in the light of the proviso, clause (2) of Section 123 does not bar or penalise legitimate canvassing or appeals to reason and judgment of the voters or other lawful means of persuading voters to vote or not to vote for a candidate. Indeed, such proper and peaceful persuasion is the motive force of our democratic process.
2820. We are unable to appreciate how the publication of this poster interfered or was calculated to interfere with the free exercise of the electoral right of any person. There was nothing in it which amounted to a threat of injury or undue inducement of the kind inhibited by Section 123(2)."
66. We have already referred to the facet of undue influence in some decisions of this Court. Emphasis has been laid by Mr. Salve, learned Amicus Curiae, on influence on the mind of the voter that interferes with the free exercise of the electoral right and how such non-disclosure or suppression of facts can be a calculated act to interfere with such right. The undue influence as has been mentioned under section 123(2) uses the words "direct or indirect." The Court has drawn distinction between legitimate canvassing and compulsion on the electorate. Emphasis has been given to the ingenuity of the human mind which is unlimited and how the nature of interference can be unlimited. The ostensibility of the ground has been taken into consideration. In this context, we think it apt to reproduce Section 171-C IPC that deals with undue influence at elections. The said provision reads as follows:
"171-C. Undue Influence at elections
- (1) 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 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 spiritual censure, 29 Shall be deemed to interfere with the free exercise of the 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."
The said provision has been referred to by the Constitution Bench in Shiv Kirpal Singh v. V.V. Giri, (1970) 2 SCC 567."
86. From the aforesaid, it is luculent that free exercise of any electoral right is paramount. If there is any direct or indirect interference or attempt to interfere on the part of the candidate, it amounts to undue influence. Free exercise of the electoral right after the recent pronouncements of this Court and the amendment of the provisions are to be perceived regard being had to the purity of election and probity in public life which have their hallowedness. A voter is entitled to have an informed choice. A voter who is not satisfied with any of the candidates, as has been held in People‟s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1: (2013) 4 SCC (Civ) 587: (2013) 3 SCC (Cri) 769:
(2014) 2 SCC (L&S) 648, can opt not to vote for any candidate. The requirement of a disclosure, especially the criminal antecedents, enables a voter to have an informed and instructed choice. If a voter is denied of the acquaintance to the information and deprived of the condition to be apprised of the entire gamut of criminal antecedents relating to heinous or serious offences or offence of corruption or moral turpitude, the exercise of electoral right would not be an advised one. He will be exercising his franchisee with the misinformed mind. That apart, his fundamental right to know also gets nullified. The attempt has to be perceived as creating an impediment in the mind of a voter, who is expected to vote to make a free, informed and advised choice. The same is sought to be scuttled at the very commencement. It is well settled in law that election covers the entire process from the issuuance 30 of the notification till the declaration of the result. This position has been clearly settled in Hari Vishnu Kamath v.
Ahmad Ishaque (AIR) 1955 SC 233, Election Commission of India v. Shivaji (1988) 1 SCC 277 and V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737. We have also culled out the principle that corrupt practice can take place prior to voting. The factum of nondisclosure of the requisite information as regards the criminal antecedents, as has been stated hereinabove is a stage prior to voting".
7. In reply to the submission of Mr. A. Kashyap, learned counsel for the applicant/respondent, Mr. K.C. Mittal, learned counsel for the Opp.
Party/Petitioner to support his submission also relied on the following judgments which are as under:
(i) Ponnala Lakshmaiah v. Kommuri Pratap Reddy AIR 2012 SC 2638 Para 3, 4, 5, 6 & 12 are quoted herein below for ready reference:
"3. Having carefully gone through the averments made in the election petition, we are of the opinion that the election petition sets out the requisite material facts that disclose a cause of action and gives rise to triable issues, which cannot be given a short shrift by taking an unduly technical view as to the nature of the pleadings. There is no denying the fact that Courts are competent to dismiss petitions not only on the ground that the same do not comply with the provisions of Sections 81, 82 & 117 of the Representation of the People Act, 1951 but also on the ground that the same do not disclose any cause of action. The expression "cause of action" has not been defined either in the Civil Procedure Code or elsewhere and is more easily understood than precisely defined. This Court has in Om Prakash Srivastava v. Union of India & Anr. (2006) 6 SCC 207: (AIR 2007 SC (Supp) 1834: 2006 AIR SCW 3823, attempted an explanation of the expression in the following words:31
"The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary, to prove each fact comprises in "cause of action".
4. It is equally well settled that while examining whether a plaint or an election petition discloses a cause of action, the Court has a full and comprehensive view of the pleading. Averments made in the plaint or petition cannot be read out of context or in isolation. They must be taken in totality for a true and proper understanding of the case set up by the plaintiff. This Court has in Shri Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC 511: (AIR 1976 SC
744) given a timely reminder of the principle in the following words:
"We are afraid, this ingenious method of construction after compartmentalisation, dissection, segregation and inversion of the language of the paragraph, suggested by Counsel, runs counter to the cardinal canon of interpretation, according to which, a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the 32 party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole."
5. Reference may also be made to the decision of this Court in Church of North India v. Lavajibhai Ratanjibhai and Ors: (2005) 10 SCC 760: (AIR 2005 SC 2544: 2005 AIR SCW 2738), wherein this Court reiterated that for purposes of determining whether the plaint discloses a cause of action, the Court must take into consideration the plaint as a whole. It is only if even after the plaint is read as a whole, that no cause of action is found discernible that the Court can exercise its power under Order VII Rule 11 of the CPC.
6. To the same effect is the decision of this Court in Liverpool & London S.P. and I. Asson. Ltd. v. M.V. Sea Success I. & Anr. (2004) 9 SCC 512; where this Court held that the disclosure of a cause of action in the plaint is a question of fact and the answer to that question must be found only from the reading of the plaint itself. The Court trying a suit or an election petition, as the position is in the present case, shall while examining whether the plaint or the petition discloses a cause of action, to assume that the averments made in the plaint or the petition are factually correct. It is only if despite the averments being taken as factually correct, the Court finds no cause of action emerging from the averments that it may be justified in rejecting the plaint. The following paragraph from the decision is apposite in this regard:
"Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in its entirety, a decree would be passed."
12. The High Court has, in the present case, held that the material facts constituting the foundation of the case set 33 up by the election petition have been stated in the election petition. That being so, the requirement of Section 83 of the Act viz. that "the petition shall contain a concise statement of material facts" has been satisfied. The question of dismissing the petition on that ground also therefore did not arise. The High Court in our opinion committed no wrong in coming to that conclusion. We need only emphasise that the burden which lies on an election petitioner to prove the allegations made by him in the election petition whether the same relate to commission of any corrupt practice or proof of any other ground urged in support of the petition has to be discharged by him at the trial. There is no dilution of that obligation when the court refuses to dismiss a petition at the threshold. All that the refusal to dismiss the petition implies is that the appellant has made out a case for the matter to be put to trial. Whether or not the petitioner will succeed at the trial remains to be seen till the trial is concluded. Even so on a somewhat erroneous understanding of the law settled by this Court, the successful candidates charged with commission of corrupt practices or other illegalities and irregularities that constitute grounds for setting aside their elections seek dismissal of the petitions in limine on grounds that are more often than not specious, in an attempt to achieve a two fold objective. First, it takes a chance of getting the election petition dismissed on the ground of it being deficient, whether the deficiency be in terms of non-compliance with the provisions of Sections 81, 82 & 117 of the Act or on the ground that it does not disclose a cause of action. The second and the more predominant objective is that the trial of the election gets delayed which in itself sub-serve the interests of the successful candidate. Dilatory tactics including long drawn arguments on whether the petition discloses a cause of action or/and whether other formalities in the filing of the petition have been complied with are adopted with a view to prevent or at least delay a trial of the petition within a reasonable time frame. While a successful candidate is entitled to defend his election and seek dismissal of the petition on ground legally available to him, the prolongation 34 of proceedings by prevarication is not conducive to ends of justice that can be served only by an early and speedy disposal of the proceedings. The Courts have, therefore, to guard against such attempts made by parties who often succeed in dragging the proceedings beyond the term for which they have been elected. The Courts need to be cautious in dealing with requests for dismissal of the petitions at the threshold and exercise their powers of dismissal only in cases where even on a plain reading of the petition no cause of action is disclosed. Beyond that note of caution, we do not wish to say anything at this stage for it is neither necessary nor proper for us to do so".
(ii) Harkirat Singh v. Amarinder Singh: (2005) 13 SCC 511 Para 56, 57, 71 & 73 are quoted herein below for ready reference:
"56. In R.M. Seshadri v. G. Vasabtha Pai (1969) 1 SCC 27, allegation as to corrupt practice had been made in the election petition. It was alleged that the returned candidate was responsible for employing cars, hired and procured for the conveyance of the voters to the polling booths. It was contended by the returned candidate that the allegation was vague and the petition was liable to be dismissed. Rejecting the contention, the Court held that it had been sufficiently pleaded and proved that cars were in fact used. The connection with the returned candidate with the use of the cars had been specifically pleaded. In the opinion of the Court:
"(T)he rest were matters of evidence which did not require to be pleaded and that plea could always be supported by evidence to show the source from where the cars were obtained, who hired or procured them and who used them for the conveyance of voters." (emphasis supplied)
57. In Samant N. Balakrishna v. George Fernandez 7 (1969) 3 SCC 238: AIR 1969 SC 1201, the Court again 35 considered a similar question. Referring to the relevant provisions of the Act, the Court held that Section 83 which provides that the election petition must contain a concise statement of material facts on which the petitioner relies and further that he must also set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice is mandatory. Then, drawing the distinction between "material facts" and "particulars", the Court observed;
"What is the difference between material facts and particulars? The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words 'material facts' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Just as a 36 plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information."
71. In Azhar Hussain v. Rajiv Gandhi 1986 Supp SCC 315: AIR 1986 SC 1253, it was observed that the law as to corrupt practice is well settled. In the context of a charge of corrupt practice, it would mean that the basic facts which constitute the ingredients of a corrupt practice alleged by the petitioner must be specific in order to succeed on the charge. Whether in an election petition, a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded. Failure to plead even a single material fact would amount to non-compliance with the mandate of Section 83(1)(a) of the Act and the election petition is liable to be dismissed.
73. In F.A. Sapa v. Singora (1991) 3 SCC 375, this Court held that Section 83(1)(a) stipulates that every election petition shall contain a concise statement of material facts on which the petitioner relies. It means that entire bundle of facts which would constitute a complete cause of action must be concisely stated in the petition. Clause (b) of the said section then requires an election petitioner to set forth "full particulars" of any corrupt practice alleged against a returned candidate. According to the Court, those particulars are obviously different from the "material facts" on which the petition is founded and are intended to afford to the returned candidate an adequate opportunity to effectively meet with such an allegation. The underlying idea in requiring the election petitioner to set out 37 in a concise manner all the "material facts" as well as "full particulars", where commission of corrupt practice is complained of, is to delineate the scope, ambit and limits of the inquiry at the trial of the election petition".
(iii) Subhash Desai v. Sharad J. Rao: AIR 1994 SC 2277 Para 13 is quoted herein below for ready reference:
"13. The scope of Section 83(1) has been recently examined in the case of F.A. Sapa v. Singora, (1991) 3 SCC 375; (1991 AIR SCW 1492), where it was pointed out that the underlying idea in requiring the election petition to set out in a concise manner all the „material facts‟ as well as the „full particulars‟, where the complaint is in respect of commission of corrupt practice is to „delineate the scope, ambit and limits of the inquiry at the trial by the election petition.‟ In the present case, the allegations made, in the election petition, may be true or false, but it is not possible to hold that the election petition does not disclose any material fact or give the material particulars of any of the corrupt practices. It need not be pointed out that even if the Court is satisfied that, in respect of one of the corrupt practices alleged, material facts and full particulars thereof have not been stated, still the election petition cannot be dismissed, if in respect of another corrupt practice the material facts and full particulars have been stated in accordance with the requirement of Section 83(1) of the Act".
(iv) Manohar Joshi V. Nitin Bhaurao Patil and Anr: (1996) 1 SCC 169 Para 48 is quoted herein below for ready reference:
"48. The High Court failed to appreciate that the only allegation of corrupt practice in this election petition which raised a triable issue is as indicated above and rest of the general averments deficient in requisite pleadings of all the constituent parts of the corrupt practice did not constitute a pleading of the full cause of action and, therefore, had to be 38 ignored and struck out in accordance with Order 6, Rule 16, C.P.C. However, there being a specific allegation in para 30 of the election petition relating to the returned candidate himself based on his speech made on 24.2.1990, to that extent a triable issue had been raised and had to be decided".
(v) Ajay Arjun Singh v. Sharadendu Tiwari and Ors. (2016 (8) SCALE 213 Para 30 is quoted herein below for ready reference:
"30. The application i.e. IA No. 12911 of 2014 does not disclose on which one of the grounds contemplated under Order VI Rule 16, the various paragraphs of the election petition are required to be struck out. On the other hand, the Appellant gave an elaborate explanation with respect to each of the allegations contained in the various paragraphs of the election petition which are prayed to be struck out. The moment court is asked to examine the defence of the returned candidate in an election petition, the election petition can neither be dismissed for want of cause of action nor any part of the pleading can be struck out under Order VI Rule 16. In the absence of the availability of any one of the grounds mentioned in Order VI Rule 16, Code of Civil Procedure striking out is impermissible. As observed by this Court in the context of the application under Order VII Rule 11, the averments contained in the election petition at this stage must be presumed to be factually correct. The only possible scrutiny of such statement is whether those allegations are relevant in the context of the relief sought in the election petition. None of the allegations contained in the various sub paragraphs of paragraph 14, except paragraph 14M, can be said to be irrelevant in the context of the prayer in the election petition."
(vi) Krishnamoorthy v. Sivakumar and Ors: (2015) 3 SCC 467 Para 52.39, 54.15, 58, 58.1, 58.2, 58.3, 58.4, 58.5, 58.6, 58.7, 58.8, 58.9, 58.10, 58.11, 58.12, 66, 83, 86, and 91 are quoted herein below for ready reference:
39"52. 39. Sub-section (3) further proceeds on the basis that the expression "free exercise of his electoral right" does not mean that a voter is not to be influenced. This expression has to be read in the context of an election in a democratic society and the candidates and their supporters must naturally be allowed to canvass support by all legal and legitimate means. They may propound their programmes, policies and views on various questions which are exercising the minds of the electors. 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 does, however, attempt to interfere with the free exercise of an electoral right is, if we may use the expression, "tyranny over the mind". If the contention of the respondent is to be accepted, it would be quite legitimate on the part of a candidate or his supporter to hypnotize a voter and then send him to vote. At the 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 hypnotizer".
"54. 15. We have to determine the effect of statements proved to have been made by a candidate, or, on his behalf and with his consent, during his election, upon the minds and feelings of the ordinary average voters of this country in every case of alleged corruption of undue influence by making statements. We will, therefore, proceed to consider the particular facts of the case before us".
"58. From the aforesaid authorities, the following principles can be culled out:
58.1.The words "undue influence" are not to be understood or conferred a meaning in the context of the English statutes.
58.2. The Indian election law pays regard to the use of such influence having the tendency to bring about the result that has been contemplated in the clause.40
58.3. If an act which is calculated to interfere with the free exercise of electoral right, is the true and effective test whether or not a candidate is guilty of undue influence. 58.4.The words "direct or indirect" used in the provision have their significance and they are to be applied bearing in mind the factual context.
58.5. Canvassing by a Minister or an issue of a whip in the form of a request is permissible unless there is compulsion on the electorate to vote in the manner indicated. 58.6. The structure of the provisions contained in section 171-C IPC are to be kept in view while appreciating the expression "undue influence" used in section 123(2) of the 1951 Act.
58.7. The two provisos added to the section 123(2) do not take away the effect of the principal or the main provision. 58.8. Freedom in the exercise of the judgment which engulfs a voter‟s right, a free choice, in selecting the candidate whom he believes to be best fitted to represent the constituency, has to be given due weightage. 58.9. There should never be tyranny over the mind which would put fetters and scuttle the free exercise of an electorate.
58.10. The concept of undue influence applies at both the stages, namely, pre-voting and at the time of casting of the vote.
58.11. "Undue Influence" is not to be equated with "proper influence" and, therefore, legitimate canvassing is permissible in a democratic set up.
58.12. Free exercise of electoral right has a nexus with the direct or indirect interference or attempt to interfere".
"66. We have already referred to the facet of undue influence in some decisions of this Court. Emphasis has been laid by Mr. Salve, learned Amicus Curiae, on influence on the mind of the voter that interferes with the free exercise of the electoral right and how such non-disclosure or suppression of facts can be a calculated act to interfere with such right. The undue influence as has been mentioned under section 123(2) uses the words "direct or 41 indirect." The Court has drawn distinction between legitimate canvassing and compulsion on the electorate. Emphasis has been given to the ingenuity of the human mind which is unlimited and how the nature of interference can be unlimited. The ostensibility of the ground has been taken into consideration. In this context, we think it apt to reproduce Section 171-C IPC that deals with undue influence at elections. The said provisions reads as follows:
"171-C. Undue Influence at elections - (1) 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 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 spiritual censure, shall be deemed to interfere with the free exercise of the 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".
The said provision has been referred to by the Constitution Bench in Shiv Kirpal Singh v. V.V. Giri, (1970) 2 SCC 567.
"83. The sanctity of the electoral process imperatively commands that each candidate owes and is under an obligation that a fair election is held. Undue Influence should not be employed to enervate and shatter free exercise of choice and selection. No candidate is entitled to destroy the sacredness of election by indulging in undue influence. The basic concept of "undue influence" relating to an election is voluntary influence or attempt to interfere 42 with the free exercise of electoral right. The voluntary act also encompasses attempts to interfere with the free exercise of the electoral right. This Court, as noticed earlier, has opined that legitimate canvassing would not amount to undue influence; and that there is a distinction between "undue influence" and "proper influence". The former is totally unacceptable as it impinges upon the voter‟s right to choose and affects the free exercise of the right to vote. At this juncture, we are obliged to say that this Court in certain decisions, as has been noticed earlier, laid down what would constitute "undue influence." The said pronouncements were before the recent decisions in People‟s Union for Civil Liberties v. Union of India (2003) 4 SCC 399, People‟s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1: (2013) 4 SCC (Civ) 587: (2013) 3 SCC (Cri) 769: 2014 2 SCC (L&S)648 and Ass. For Democratic Reforms (2002) 5 SCC 294 and other authorities pertaining to corruption were delivered. That apart, the statutory provision contained in Sections 33, 33-A and Rules have been incorporated".
"86. From the aforesaid, it is luculent that free exercise of any electoral right is paramount. If there is any direct or indirect interference or attempt to interfere on the part of the candidate, it amounts to undue influence. Free exercise of the electoral right after the recent pronouncements of this Court and the amendments of the provisions are to be perceived regard being had to the purity of election and probity in public life which have their hallowedness. A voter is entitled to have an informed choice. A voter who is not satisfied with any of the candidates, as had been held in People‟s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1: (2013) 4 SCC (Civ) 587 :(2013) 3 SCC (Cri) 769:
(2014) 2 SCC (L&S) 648, can opt not to vote for any candidate. The requirement of a disclosure, especially the criminal antecedents, enables a voter to have an informed and instructed choice. If a voter is denied of the acquaintance to the information and deprived of the condition to be apprised of the entire gamut of criminal 43 antecedents relating to the heinous or serious offences or offence of corruption or moral turpitude, the exercise of electoral right would not be an advised one. He will be exercising his franchise with the misinformed mind. That apart, his fundamental right to know also gets nullified. The attempt has to be perceived as creating an impediment in the mind of a voter, who is expected to vote to make a free, informed and advised choice. The same is sought to be scuttled at the very commencement. It is well settled in law that election covers the entire process from the issuance of the notification till the declaration of the result. This position has been clearly settled in Hari Vishnu Kamath v. Ahmad Ishaque AIR 1955 SC 233, Election Commission of India v.
Shivaji (1988) 1 SCC 277 and V.S. Achuthanandan v. P.J. Francis (1999) 3 SCC 737. We have also culled out the principle that corrupt practice can take place prior to voting. The factum of non-disclosure of the requisite information as regards the criminal antecedents, as has been stated hereinabove is a stage prior to voting".
"91. The purpose of referring to the instructions of the Election Commission is that the affidavit sworn by the candidate has to be put in public domain so that the electorate can know. If they know the half truth, as submits Mr. Salve, it is more dangerous, for the electorate is denied of the information which is within the special knowledge of the candidate. When something within special knowledge is not disclosed, it tantamounts to fraud, as has been held in S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1. While filing the nomination form, if the requisite information, as has been highlighted by us, relating to criminal antecedents, is not given, indubitably, there is an attempt to suppress, effort to misguide and keep the people in dark. This attempt undeniable and undisputedly is undue influence, and therefore, amounts to corrupt practice. It is necessary to clarify here that if a candidate gives all the particulars and despite that he secures the votes that will be an informed, advised and free exercise of right by the 44 electorate. That is why there is a distinction between a disqualification and the corrupt practice. In an election petition, the election petitioner is required to assert about the cases in which the successful candidate is involved as per the rules and how there has been non-disclosure in the affidavit. Once that is established, it would amount to corrupt practice. We repeat at the cost of repetition, it has to be determined in an election petition by the Election Tribunal."
(vii) Aad Lal v. Kanshi Ram: AIR 1980 SC 1358 Para 11 is quoted herein below for ready reference:
"11. It has to be remembered that it is an essential ingredient of the corrupt practice of "undue influence"
under sub-section (2) of section 123 of the Act, that there should be any "direct or indirect interference or attempt to interfere" on the part of the candidate or his agent, or of any other person with the consent of the candidate or his agent, "with the free exercise of any electoral right." There are two provisions to the sub-section, but they are obviously not applicable to the controversy before us. It was therefore necessary, for the purpose of establishing the corrupt practice of "undue influence", to prove that there was any direct or indirect interference or attempt to interfere with the exercise of any electoral right".
(viii) Baburao Patel and Ors v. Dr. Zakir Hussain and Ors:
AIR 1968 SC 904 Para 18 is quoted herein below for ready reference:
"18. We may in this connection refer to S.123 (2) of the Representation of the People Act, 1951 which also defines "undue influence." The definition there is more or less in the same language as in S.171-C of the Indian Penal Code except that the words "direct or indirect" have been added to indicate the nature of interference. It will be seen that if anything, the definition of "undue influence" in the Representation of the People Act may be wider. It will therefore be useful to refer to cases under the election law 45 to see how election tribunals have looked at the matter while considering the scope of the words "undue influence".
(ix) Z.B. Bhukari v. B.R. Mehra and Ors: AIR 1975 SC 1788 Para 13 and 15 are quoted herein below for ready reference:
13. Section 123 (2) gives the "undue Influence" which could be exercised by a candidate or his agent during an election a much wider connotation than this expression has under the Indian Contract Act. "Undue Influence", as an election offence under the English law is explained as follows in Halsbury‟s Laws of England. Third Edition, Vol.
14, p. 223-224 (para 387):
"A person is also guilty of undue influence, if he, directly or indirectly by himself or by any other person on his behalf, makes use of or threatens to make use of any force, violence or restraint, or inflicts, or threatens to inflict, by himself or by any other person, any temporal or spiritual injury, damage, harm or loss upon or against any person in order to induce or compel that that person to vote or refrain from voting or on account of that person having voted or refrained from voting.
15. We have to determine the effect of statements proved to have been made by a candidate, or, on his behalf and with his consent, during his election, upon the minds and feelings of the ordinary average voters of this country in every case of alleged corrupt practice of undue influence by making statements. We will, therefore, proceed to consider the particular facts of the case before us".
8. Mr. K.C. Mittal, learned counsel for the Opp. Party/Petitioner to support his submission also relied on the judgment and order dated 07.10.2013 passed by this Court in MC (EP) No. 276 of 2013 in EL. PET. No. 2 of 2013.
For ready reference Para 8 of the said judgment and order dated 07.10.2013 is reproduced herein below:
46"8. I have perused the observations made by the Apex Court and it is clearly understood that, certain guidelines have already been formulated and the candidate is bound to disclose his entire antecedents including his financial assets and liabilities for the interest of the voters. The voters have every right to know the antecedents of the candidate for whom they are going to cast their votes. If details of antecedents of the candidates are not available, in my view the voters will not get the chance to choose the right candidate, as a result, they will be deprived of their statutory rights to cast their votes of their right choice. In case, if details of antecedents of a candidate are not furnished in the affidavit while filing nomination, it will amount to flouting of voters which is not permissible at all".
9. After hearing the submissions advanced by the learned counsel for the parties on maintainability of the Election Petition, the question which arose before this Court is whether the act of the respondent/applicant has caused any undue influence and thereby interfering the free electoral mind and rights of the voters? To answer this issue, let me examine the speech dated 05.05.2016 (English Translation) led by the applicant/respondent which is at Annexure-15 Page 67 of the Election Petition. I do not find or satisfy myself that the speech of the applicant/respondent has caused any undue influence or tried to cause any undue influence in the mind of the voters. In that speech, the applicant/respondent has raised a question that, "why the money sanctioned by the Job Card Holders has not been released in time? For ready reference the English transcription of speech is reproduced herein below:
"Why have you kept the money of the poor? Why haven‟t you given the poor‟s money? The Indian government had returned Rs. 350 crores for this VEC. Meghalaya gets Rs. 350 crores every year. Where is this money? The Indian Government gave them money; they didn‟t give it to you. Where has the money gone? When I started asking this question in the elections, then Dr. Mukul got angry. Dr. Mukul then called in Shillong and asked why the money of VEC hasn‟t been released yet and then ordered it to 47 be released as soon as possible. It hadn‟t been released for two years, they remembered about the money of VEC only when Babang started working. Dr. Mukul ordered the officer to release the money of job card and VEC as soon as possible otherwise Babang will play the politics of VEC in the elections. He ordered the officer to release the money as soon as possible. Friends, I want to say that I haven‟t come to play the politics of VEC and Job Card. I am a public leader and it is my responsibility to raise the voice of the public. When the people have problems, when have sorrows, when they are not getting their earned money, then it is my responsibility to raise my voice. What kind of politics is this? Is there any politics involved in this? I will only raise your voice. I want Dr. Mukul to immediately release the money. And friends I want to assure you that with your help, if I get elected as the MP, my foremost job will be to release the money of VEC. I will release it. This is my promise to you........."
10. I have also perused the speech transcript No. M2U00221 dated 06.05.2016 wherein, it is noticed that some Congress MLA by the name of Cherak Momin gave a statement that, Babang i.e. the applicant/respondent has taken the money and therefore the applicant/respondent raised a question that he is neither the MLA nor the Minister nor the MP, so it is not possible for him to take the money or ran away with the money.
On perusal of the said clipping, I am not satisfied that he tried to exert pressure in the mind of the voters or influence the mind of the voters.
11. On further perusal of the speech transcript No. M2U00450 dated 07.05.2016 at Annexure-15 Page 69; it is understood that in reply to the speech of one MLA of the Kharkutta Constituency he just raised a question whether Dr. Mukul or Babang is the Chief Minister of Meghalaya? Because the said MLA had stated that Conrad (Babang) had swallowed it. Besides that, he also raised a question that, when the money is not released for the last 2(two) years, what is the urgency to release the money during the time of election? Is it because of a political game? This speech also in my view does not try to cause any undue 48 influence in the mind of the voters. For ready reference the speech transcript No. M2U00450 dated 07.05.2016 is reproduced herein below:
"Today, the MLA of the Kharkutta constituency gives a lecture. He asks do you know why you didn‟t get the money of the job card or the NREGA? Because Babang swallowed it. He stole away 350 crore rupees. Brother, I want to ask them whether Dr. Mukul or Babang is the CM of Meghalaya. They have all the power, they have the entire government. If Conrad (Babang) can take away the money even after them having all the power, then I must be possessing a post higher than the CM. They say that Babang has stopped all the work. They do not know that there is something known as Election Commission. It also has some rules. Neither Babang nor the CM can break those rules. They have a moral code of conduct. They didn‟t release the money of NREGA, why didn‟t they? When the Indian government gave you the entire money, then why did you stop it for 2 years? Now when the election has come and when you realized that you didn‟t give the money, then whose fault is it? It‟s Babang‟s fault. Wow! What politics are they playing? Friends, this is not done. They should tell their work, they should say what they can do and should stop blaming others. This is their politics".
12. On further perusal of the speech transcript No. M2U00065 dated 06.05.2016 at Annexure-15 Page 71; it appears that the respondent/applicant was simply clarifying the allegations made by the said MLA Mr. Cherak Momin of Kharkutta Constituency. This also in my view is not sufficient to influence the mind of the voters. For ready reference the speech transcript No. M2U00065 dated 06.05.2016 is reproduced herein below:
"I found it hilarious that Mr. Cherak Momin, MLA, Kharkutta at his speech in Kharkutta, just yesterday asked, do you know why we have not been able to release the funds for VEC and all the beneficiaries of the job card holders? That‟s because Babang has misappropriated the funds meant for the VEC‟. He said in his 49 speech. „Babang has withdrawn 350 crores for himself‟. This is what Cherak Momin, MLA, Kharkutta said in his speech yesterday.
Who am I? I am neither an MLA nor an MP. I might become an MP with your blessings later, but I am nothing right now. Every year, the central government releases Rs. 350 crores for the VEC and the job card holders. For two years, the people in Selsella Block have not reaped the benefits of having job cards.
Since the beginning of my campaign I have taken up this issue and because I have been talking about this every day and in every single one of my speech, Mukul has also started to get frustrated thinking Babang is turning it into a political agenda for this elections. So I heard that to counter this he has recently called up his officers. In this telephonic conversation he has ordered the officers to arrange funds by hook or by crook to make the payments for the job card holders. He didn‟t care if they even had to take loan to be able to make the payments. He thinks that Babang is going to take this point and play politics during elections. But I want to tell the people that there is nothing political about it. People are in great pain and difficulty because they have not received their payments. The state government is unable to release funds for the poor and helpless people who worked all day for Rs. 150-160 for their daily wages. As a public leader should I not raise my voice? This is my work. I am not doing this for the sake of politics. I feel like this is my responsibility and that is the only reason why I am taking up this issue. My friends, if I become MP in future with your blessings, then this will be the first issue I will take up. I want to promise that I will work with all my heart and will do all that I can to help release the funds for the VECs and the job card holders".
13. On further perusal of the speech transcript No. M2U00127 dated 14.05.2016 at Annexure-15 Page 71 (A) the applicant/respondent tried to make aware the public about the actual facts and circumstances and he had made it clear that he has never taken it as a political issue. Therefore, in my view, I do not see any reason to record that such speech has any elements to influence the mind of the voters and thereby exerting undue influence to exercise the 50 franchise right of the voters, thereby causing damage to the applicant/respondent. For ready reference the speech transcript No. M2U00127 dated 14.05.2016 is reproduced herein below:
"The congress is bringing up different types of issue and spreading rumors to misinform the public. They are trying to malign my name in the name of politics- Babang has misappropriated the NREGA funds, Babang has misappropriated Rs. 6 Crores from the district council these are fro of the rumors doing their round.
Lets talk about NREGA they have made NREGA into a political issue against me. The payment which has not been received is from the years 2013-14-15. It has been 2-3 years since the people, the beneficiaries have completed their work and submitted the bills. If our state government genuinely wanted to pay the people they would have done so 2-3 years back. Only now, since election has come congress party and Dr. Mukul have suddenly opened their eyes. "If we are unable to make the NREGA payments before elections, then Babang is going to turn it into a big political issue and close it". My friends I have never thought of it as a political issue, I have taken this issue up because of the poor. I am a public figure and I need to voice the people problem. If I don‟t then I would have failed in my work. That is the very reason why I have been vocal about NREGA issue. I have taken up this issue since the beginning and now they are blaming me instead that Babang is the one who stop the payments. My friends these are politics of congress party. Like I said earlier they would have release the funds 2 years earlier if they had really wanted to release. They wanted to release it only now during elections, but they could not because of the elections code of conduct".51
14. Now, let me look back upon the law what it says about "undue influence". Section 123 (2) of Representation of People Act, 1951 speaks as follows:
"123 (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:
Provided that -
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who -
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social ostracism and ex-
communication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,
(b) a declaration of public policy, or a promise of publication, 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 clause".
On bare perusal of the provision of Section 123 (2), it is understood and it appears to me that, to bring a person who indulges in "undue influence", there must be direct or indirect interference or attempt to interfere on the part of the candidate or his agent so as to divert their mind for free exercise of their electoral rights. In this case also, there is nothing available in the pleading or the argument that the applicant/respondent has bribed any of the 52 electoral voters or gives or threatens the electoral voters, so that they can cast their votes in favour of the applicant/respondent. Therefore, on scanning of the speech transcripts, I could not find or satisfy myself or record any reason that the applicant/respondent (Shri Conrad K. Sangma) can be brought within the parameter of Section 123 of Representation of People Act, 1951.
15. The Hon‟ble Supreme Court in the case of Lalit Kishore Chaturvedi v. Jagdish Prasad Thada and Ors in Civil Appeal No. 1034 (NCE) of 1987 dated 16.02.1990 available in Manupatra as well as AIR 1990 SC 1731: MANU/SC/0304/1990 at Para 13 had made the following observation:
"13. Even the High Court found it difficult to disbelieve the meeting but yet it found that the second part of the leaflet referred to personal character of the respondent and that being false a charge under Section 123(4) was made out. A reading of the leaflet leaves no room for doubt that the second part cannot survive in isolation. If the first part is omitted then the second, as stated earlier, does not make any sense and if the first part is correct and a speech, as extracted, was made by Shri Dhariwal then the later was an inference or opinion about the political character of the respondent and not his personal conduct or character. In Ram Chandra Bhatia 1986 (2) SCR 121election was set aside by the High Court on a pamphlet which painted the rival candidate as indulging in falsity. It was not approved by this Court and it was held „law postulates that if a false statement is made in regard to public or political character of the candidate it would not constitute a corrupt practice even if it is likely to prejudice to prospect of that candidates election. The public and political character of a candidate is open to public opinion or public criticism. If a false statement is made about the political views or his public conduct or character the elector could be able to judge the elections on the merits and could not be misled by any false allegations in that behalf. „Therefore, if it is accepted that reference to „true faces‟ in the leaflet or „wolf in the skin of jackals‟ or „showing their blood soaked hands‟, and 53 „blood thirsty jaws‟ was to congress candidate then in the background of the speech delivered by Shri Dariwal it could utmost be construed as an expression of opinion and not a statement of fact".
On bare perusal of the said observation made by the Hon‟ble Supreme Court, it is also clear that a false statement made in regard to public or political character of the candidate, it would not constitute a corrupt practice even if it is likely to prejudice to the prospect of that candidates election. The public and political character of a candidate is open to public opinion or public criticism. But, in this instant case as I have already observed earlier on perusal of a copy of the speech transcripts at Annexure-15, I find that it was a mere allegation and counter allegation by two parties of the MGNREGA and such debate is always acceptable for a healthy election or a healthy process of democracy.
16. The Hon‟ble Supreme Court in the case of Krishnamoorthy v.
Sivakumar and Ors in Civil Appeal No. 1478 of 2015 (Arising out of SLP (C) No. 14918 of 2009) dated 05.02.2015 available in Manupatra as MANU/SC/0108/2015 made it clear that, the prefix "undue" indicates that there must be some abuse of influence. „Undue influence‟ is used in contradistinction to „proper influence‟. Construed in the light of the proviso, clause (2) of Section 123 does not bar or penalise legitimate canvassing or appeals to reason and judgment of the voters or other lawful means of persuading voters to vote or not to vote for a candidate. Indeed, such proper and peaceful persuasion is the motive force of our democratic process. For ready reference Para 48 of the said judgment dated 05.02.2015 is quoted herein below:
"48. In Bachan Singh v. Prithvi Singh, (1975) 1 SCC 368, there was a publication of posters bearing the caption "Pillars of Victory" with photographs of the Prime Minister, Defense Minister and Foreign 54 Minister. It was contended before this Court that the publication of the poster not only amounted to the exercise of "undue influence" within the contemplation of Section 123(2) but also constituted an attempt to obtain or procure assistance from the members of the armed forces of the Union for furtherance of the prospects of returned candidate‟s election within the purview of Section 123(7). The Court, treating the contention as unsustainable held thus: "Doubtless the definition of "undue influence" in sub-section (2) of Section 123 is couched in very wide terms, and on first flush seems to cover every conceivable act which directly or indirectly interferes or attempts to interfere with the free exercise of electoral right. In one sense even election propaganda carried on vigorously, blaringly and systematically through charismal leaders or through various media in favour of a candidate by recounting the glories and achievements of that candidate or his political party in administrative or political field, does meddle with and mould the independent volition of electors, having poor reason and little education, in the exercise of their franchise. That such a wide construction would not be in consonance with the intendment of the legislature is discernible from the proviso to this clause. The proviso illustrates that ordinarily interference with the free exercise of electoral right involves either violence or threat of injury of any kind to any candidate or an elector or inducement or attempt to induce a candidate or elector to believe that he will become an object of divine displeasure or spiritual censure. The prefix "undue" indicates that there must be some abuse of influence. "Undue influence" is used in contradistinction to "proper influence". Construed in the light of the proviso, clause (2) of Section 123 does not bar or penalise legitimate canvassing or appeals to reason and judgment of the voters or other lawful means of persuading voters to vote or 55 not to vote for a candidate. Indeed, such proper and peaceful 55 persuasion is the motive force of our democratic process. We are unable to appreciate how the publication of this poster interfered or was calculated to interfere with the free exercise of the electoral right of any person. There was nothing in it which amounted to a threat of injury or undue inducement of the kind inhibited by Section 123(2)."
17. After perusal of the pleading and the argument advanced by the learned counsel for the parties and on perusal of the copy of the speech transcripts at Annexure-15 and taking into consideration the provision of Section 123 of Representation of People Act, 1951 and the guidelines given by Hon‟ble the Apex Court quoted above, I could not satisfy myself nor I am in a position to record the reason that such speeches amounts to "undue influence" and thereby affected the result of the election. In this case, from the speech transcripts, nowhere does it appear that the Opp. Party/Petitioner has offered bribe or threatened or harassed the voters in any manner. Therefore, in my view the contents of the petition do not establish "undue influence" against the applicant/respondent. Hence, I do not find any cause of action to proceed further with the case. We must remember that, debate at the time of election which points out the faults of the Government is a part of a healthy process of democracy and that cannot be considered as an "undue influence". As a result, the Election Petition No. 1 of 2016 is not maintainable and hence, it is dismissed and stands disposed of.
JUDGE D. Nary