Rajasthan High Court - Jaipur
Sri Mohan vs Sri Bhairon Singh Shekhawat on 25 May, 1994
Equivalent citations: AIR1994RAJ268
ORDER Milap Chandra Jain, J.
1. This election petition has been filed by the petitioner (an elector) for declaring the election of the respondent (returned candidate) as a Member of the Rajasthan Legislative Assembly from Ball constituency as void on the ground of corrupt practices. Paras Nos. 7 and 8 of the election petition contain averments regarding them.
2. Para No. 7 runs as under : --
"7. That- the respondent Shri Bhairon Singh Shekhawat has committed corrupt practices of inducement by direct interference with the free exercise of their electoral rights inducing the electors to believe that they will become the object of divine displeasure within the meaning of Section 123 of the Act, by making appeal to the voters to vote on the ground of their religion and community and also used of and appeal to religious symbols which is a corrupt practice defined in Section 123(3) of the Act and by promoting feelings of hatred between different classes of citizens of India on the ground of religion and community for the furtherance of the prospects of his election (respondent) or for prejudicially affecting the election of Shri Mitha Lal Jain, who was the main contesting candidate set up by the Indian National Congress, as defined in Section 123 of the Act."
3. The relevant portions of para No. 8 run as under:- -
"8. That the material facts and the particulars in support thereof and the grounds in respect of the corrupt practices mentioned in the foregoing para are set out in the ensuing paragraphs:--
(a). That Shri Bhairon Singh Shekhawat addressed several election meetings on 27-10-1993 from the forenoon up to the midnight while starting the election campaign in the Constituency in question as detailed here-under:
In the aforesaid meetings the respondent on a public address system made an appeal in the name of Lord Ram, the main theme of which was the seeking votes in the name of Ram and also referred to the demolition of the structure of Babri Masjid at Ayodhya, for promoting hatred between different classes of India on the ground of religion and community for furtherance of the prospects of his lection. He also appealed to the voters by using religious symbol of Goddess Laxmi and also made an appeal to the voters to put their seal on Kamal because on the date of polling there was 'Dhan Teras' and Laxmi had originated from Kamal.
xxxx xxxx xxxx xxxx
(d) In the Falna Speech, he incited the Hindus in the background of demolition of structure of Babri Masjid on 6-12-92 as also construction of the Ram Temple. The highlights and features of the aforesaid speech are quoted hereunder:--
^^vc pquko gksxk pquko ds eqn~ns D;k gS eqn~ns rhu gS eksVs :i ls igyk eqn~nk gS jkejUe Hkwfe dk nwljk eqn~nk gS Hkkjr ds vkfFkZd xqykeh dk vkSj rhljk eqn~nk gS jktLFkku ds fodkl dk------------
;s oksV Hks: flax dk ugh gS] ;s oksV dey ds ewy dk ugha gS] ;s oksV bl ckr dk gS ds fgUnqLrku dh turk v;ks/;k esa Hkxoku jke ds tUe LFkku ij efUnj cukuk pkgrh gS ;k fgUnqLrku ds iz/kku ea=h ds vuqlkj ogk] tUe LFkku ij efLtn cukuk pkgrh gS vc vki QSlyk dj ys vxj eafnj cukuk pkgrs gS rks vkidks dey ds lkFk [kM+k gksuk iMs+xk ;fn vki efLtn djuk pkgrs gS rks dk¡xzl ds gkFk esa vkuk iMs+xk esjk fo'okl gS fd eqlyeku vPNh rjg ls le> tk;s-----------------------
eqlyekuksa us dk¡xzsl dk lkFk fn;k ysfdu fQj Hkh <kapk VwV x;k vkt iz/kku ea=h dgrs gSa fd eSa <kaps dh txg efLtn cukÅWxk rks eqlyekuksa dks lkQ dg nsuk pkgrk gw¡ <kaps dh txg rks eafnj cusxk vkSj <kaps dh txg efLtn cukus dk dke fdlh ljdkj us fd;k rks oks 61 rksM fn;k tk;sxk oks <kapk fgUnqLrku esa ugh jgsxk---------- blfy;s eSa dgrk gw¡ fd <kapk VwVsxk efLtn VwVsxh rks nnZ fdldks gksxk \ tks efLtn esa fo'okl j[krk gS------------
;g <kapk efLtn ugha Fkk ;g dk¡xzsl dk oksV c¡d Fkk turk us rksM fn;k vc dk¡xzsl d yksx jks jgs gS <kapk VwV x;k <kapk VwV x;k <kapk VwV x;k vjs jksvks er nks efgus dk bUrtkj djks ;g rqEgkjk <kapk Hkh ,sls tk;sxk tSls N% fnlEcj dks ;g <kapk x;k ml <kaps dks dksbZ cukus okyk ugha ;g <kapk ugh ;g efLtn ugh vkt dksbZ eqlyeku eq>s dg ns dksbZ izek.k cuk ns fd bl <kaps esa fdlh us uekt i<+h gS bl <kaps esa dHkh dqjku dh fdrkc j[kh xbZ gS bl <kaps esa ls dHkh vtku nh xbZ gS ysfdu <kaps dks eqlyeku dgrs gS fd ;g efLtn gS efLtn**
4. The relevant portion of the news-item referred to in the abovequoted Sub-para (c) runs as under:
^^'ks[kkor us dgk fd ernku /ku rsjl ds fnu gS vkSj y{eh dey eslsa gh fudyh Fkh A blfy;s igys dey ij pkSdM+h yxk;s A**
5. It has further been averred in the election petition that the speech of respondent containing the above quoted offending part was recorded on a tape by Babu Lal son of Pukh Raj resident of Ball and he procured the original tape from him (Babulal). The original cassette and three extra copies have been filed along with the election petition. One copy has been given to the respondent along with a copy of the election petition.
6. On March 4, 1994, the learned Counsel for the respondent moved an application under Order 6, Rule 16 and Order 7, Rule 11, C.P.C. read with Sections 83, 86 and 87, Representation of the People Act, 1951 (hereinafter to be called 'the RP Act') praying that the averments contained in paras Nos. 7, 8 and 9 of the election petition be struck out and the election petition be rejected and dismissed with costs. In support of the application, an affidavit of the respondent has been filed. In this application it has been averred in short, as follows. The election petition including Annexure 1 and the accompanying affidavit do not disclose any cause of action as it neither contains concise statement of material facts nor full particulars of the corrupt practices. The affidavit accompanying the election petition also does not contain full particulars in support of the allegations of corrupt practices and is not in accordance with the rules. Paras Nos. 7, 8 and 9 of the election petition are vague and vaxatious. They are robing and fishing in nature tending to prejudice and embarass the fair trial of the election petition. The submissions made in these paras do not amount to any concise statement of material facts and full particulars of the alleged corrupt practices within the meaning of Sub-sections (2). (3) and (3A) of Section 123 of the RP Act.
6(a). As required under Section 123 of the RP Act, the petitioner has not stated :
(i) the names, parentage, residence of the electors who were induced by the respondent to believe that they would become the object of the divine displeasure.
(ii) the particulars words of the inducement of the divine displeasure and
(iii) the particulars as to how such inducement interfered with the free exercise of their electoral right.
6(b). As required under Section 123, the petitioner has not stated :
(i) the details of the appeals or words thereof alleged to have been made by the respondent in the name of Lord Ram in different towns/villages at different times,
(ii) the names, parentage and residence of the electors who were present at each of the said meetings,
(iii) the names of the persons who presided in these meetings,
(iv) the details of the words in which the respondent is alleged to have referred to the demolition of the alleged Babri Masjid at the alleged several meetings with their context,
(v) the details of the appeals and words thereof made at each of the several meetings for promoting hatred between different classes on the ground of religion and community,
(vi) the details of the appeals or words thereof in which the religious symbol of Goddess Laxmi is alleged to have been used with its details, and
(vii) how the appeals to cast votes in favour of the symbol Kamal constituted corrupt practice when it has been specifically enacted in Section 123 of the RP Act that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol for such purpose.
6(c). On the date of poll i.e. November 11, 1993, there was 'Dhan Teras' and Laxmi has originated from Kamal. As such it did not amount to an appeal to religious symbol.
6(d). The highlights and features of the alleged speech given in Sub-para (d) of Para 7 of the election petition are absolutely out of context, it has not been pointed out as to which quotation amounts to inciting the Hindu in the background of the demolition of the structure of the alleged Babri Masjid and also construction of the Ram Temple.
6(e). It has not been stated on what date, time and place the speeches of the respondent and other speakers were recorded on the said tape, mandatory provisions of Section 83 have not been complied with, the petition deserves to be rejected under Order 7, Rule 11, C.P.C. and deserves to be dismissed under Section 9S of the RP Act.
7. On April 6,1994, the petitioner filed his reply to the said preliminary objection of the respondent along with his affidavit. He has averred in it, in short, as follows. The preliminary objections raised are unfounded, baseless and untenable and they have been taken with a view to prolong the trial of the election petition. It has not been stated in what manner the provisions of Section 83(1)(a) and (b) of the RP Act have not been complied with. The election petition sets out concise statement of all material facts and particulars and it duly discloses cause of action. The allegations set out in the election petition are quite clear. They do not admit of any vagueness or require particulars. The speeches of other speakers are neither required to be stated not are relevant. The allegations are against the respondent himself. All relevant facts are within his knowledge and, therefore, he cannot evade to file his written statement. The corrupt practice is based on his own speeches which have been published in the newspaper and have been recorded in the tape. A tentative list of persons present in various meetings are mentioned in Schedule 1, appended to this reply.
8. The respondent filed his rejoinder to the said reply traversing almost all the averments of the reply and reiterating the averments made in his application dated March 4, 1994. He has stated, in short, as follows: Preliminary objections raised are well founded, sound, tenable and deserve to be allowed. The submissions of the petitioner "It will be a matter of interpretation" (para 5, page 4 of his reply) as to which head the corrupt practices will fall on the basis of the speeches attributed to the respondent is incorrect and denied. It itself indicates that the allegations in the election petition regarding corrupt practices are absolutely vague, it discloses no cause of action and hence it deserves to be dismissed. The petitioner wants to have roving and fishing enquiry which cannot be allowed. It is for the petitioner to pin-point the alleged speech and specify the alleged corrupt practice said to have been made out from that portion. The petitioner cannot claim any exemption from the legal obligation cast on him under clauses (a) and (b) of Sub-section (1) of Section 83 of the RP Act and relevant provisions of Code of Civil Procedure on the ground that the allegations are against the respondent himself. The respondent was elected as a Member of the Rajasthan Legislative Assembly in all the elections from 1952 till today except in the election held in the year 1971-72, his election was never cnaaenged and it leaves no manner of doubt that the respondent has not and could not commit corrupt practices. The petitioner is not entitled to produce any schedule containing a tentative list of the persons alleged to be present at the alleged meetings. This schedule cannot be looked into for deciding preliminary objections. The petitioner is under statutory obligation to pinpoint the alleged offending portions of the alleged speech. The reproduction of the alleged speech in the election petition does not and cannot satisfy the requirements of law. Mere quoting of the alleged speech and filing of cassette do not and cannot do away with the requirements of Section 83(1)(a) and (b) of the RP Act and the relevant provisions of the Code of Civil Procedure. Material facts and particulars constitute cause of action, in their absence the election petition is not maintainable and it deserves to be dismissed without trial.
9. In support of the preliminary objections, the learned counsel for the respondent contended thus. It is well settled law that the preliminary objections regarding the maintainability of the election petition should be decided at the initial stage so that the parties may be saved from long drawn trial and expenditure. He relied upon K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687 para 41 and Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253 : (1986 All LJ 625) paras4, 9 and 11. The averments contained in the election petition are vague, frivolous and vaxatious in nature and lack material particulars. Reliance was placed on Laxmi Narain Nayak v. Ram Ratan Chaturvedi, 1990 (2) SCC 173: (AIR 1991 SC 2001). No facts and particulars regarding undue influence and divine displeasure have been given. He placed reliance on Ram Dial v. Sant Lal, AIR 1959 SC 855 para 9. The poll day was on 'Dhan Teras' day Lotus (Kamal) was allotted to the respondent being a candidate of the Bhartiya Janta Party (BJP). The proviso to Sub-section (3) of Section 123 of the RP Act provides that no symbol allotted under the Act to a candidate shall be deemed to be a religious symbol for the purpose of this Sub-section. Appeal to the voters to put their seal on the 'Dhan Teras' day on Kamal wherefrom Laxmi has emerged did not amount to appeal to religious symbol in the furtherance of the prospects of the election of the respondent. It is not the case of the petitioner that the respondent also said that if the vote was not given to lotus (Kamal), it would invite displeasure of Goddess Laxmi. It did not amount to interference with the free exercise of the electoral rights. He placed reliance upon Kultar Singh v. Mukhtiar Singh, AIR 1965 SC 141 paras 8 and 12, Jagdev Singh Sidhanti v. Pratap Singh Daulta. AIR 1965 SC 183 paras 10,11 and 26 and Ramanbhai Ashabhai Patel v. Dhabi Ajit Kumar, AIR 1965 SC 669 paras 9, 10, 11 and 12. This symbol was allotted by the Election Commission of India despite vehement opposition by Congress (I) party vide its order dated February 19, 1992. A portion of the speech alleged to have been delivered by the respondent at Falne on October 27, 1993 has simply been quoted at page 7 of the election petition. It has been averred in the election petition that the alleged full speech is recorded in the cassettee which has been submitted with the election petition. Entire transcript of the alleged speech has to be taken into consideration and not a few sentences of here and there to ascertain correct and net impact of the speech on the voters. It is also well settled law that a cassette (tape) is a document and the document must be read as a * whole. He relied upon K.M. Mani v. P. J. Antony, AIR 1979 SC 234 para 12, and Kultar Singh v. Mukhtiar Singh, AIR 1965 SC 141 para 9. The total effect of such an appeal has to be borne in mind in deciding whether there was an appeal to the religion as such or not upon the minds and feelings of the ordinary average voters. He relied upon S. Harcharan Singh v. S. Sajjan Singh, AIR 1985 SC 236. It has also not been shown which sentence or part of the speech quoted at page 7 attracts Sub-section (2) or Sub-section (3) or Sub-section (3A) of Section 123 of the RP Act. Court is not 'supposed to grope in dark and to have fishinginquiry. No appeal to the religion of the respondent was made in the alleged speech contained in the tape. He relied upon Ebrahim Sulaiman Seth v. M. C. Mohammed, AIR 1980 SC 354 paras 8,9 and 10 and Narain Chand' Parashar v. Prem Kumar Dhumal, AIR 1993 HP 84 paras 174 to 181. Material facts are lacking in the election petition supporting the "Innuendo" meaning of the said speech. He relied upon M.J. Zakharia v. T.M. Mohammed, 1990 (2) SCR 719 para 22. Affidavit filed with the election petition is not in the prescribed Form No. 25 of the Conduct of Election Rules, 1961. There is no verification in it regarding particulars. No verification has been done on the basis of information. Verification on the basis of documents and knowledge is not in accordance with law. An affidavit is an integral part of the election petition as it is a statutory requirement. He relied upon M. Kamalam v. Dr. V.A. Syed Mohammed, AIR 1978 SC 840 para 5, U.S. Sasidharan v. K. Karunakaran, AIR 1990 SC 924, F.A. Sapa v. Singora, AIR 1991 SC 1557 : (1991 AIR SCW 1492) para 28 and K.C. Madhava Kurup v. K. Muraleedharan, AIR 1991 Kerala 20 para 7 (end). The petitioner does not say that he was present in all the public meetings held by the respondent on October 27,1993. It is his case that the speech given by the respondent at Falna was taped by Babulal. As he was not present in the public meeting held at Falna, it cannot be said that the speech was tape recorded in his presence by Babulal. This portion of the affidavit could be verified on the basis of information and not on the basis of knowledge.
10. In reply, it has been contended by the learned counsel for the petitioner, in short, as follows: Necessary facts and particulars of the corrupt practices have duly been given in the election petition. Without recording a finding that averments contained in certain paras of the election petition are unnecessary, frivolous or vaxatious, they cannot be struck out under Order 6 Rule 16, C.P.C. He placed reliance on Roop Lal Sethi v. Nachhattar Singh, AIR 1982 SC 1559. By deleting the word "systematic" appearing in Sub-section (3) of Section 123 of the RP Act before the words "appeal by a candidate" scope of subsection (3) has greatly been increased. The gist of the speeches given by the respondent reported in Rajasthan Patrika Annexure 1 attracts Sub-section (3) of Section 123 of the RP Act, He relied upon Shubnath Deogam v. Ram Narain Prasad, AIR 1960 SC 148 para 18. The portion of the speech delivered at Falna on October 27,1993 and quoted at page 7 of the election petition clearly attracts Sub-sections (2). (3) and (3A) of Section 123, RP Act. He placed reliance on Narbada Prasad v.Chhaganlal, AIR 1969 SC395 : (1967 All LJ 462). Pleadings is read as a whole. Its substance and not form is to be seen. He relied upon Uday Singh v. Madhav Rao Scindia, AIR 1976 SC 744 para 30. Election petition cannot be rejected for want of necessary particulars. An opportunity is generally given to amend it. He placed reliance upon Balwant Singh v. Laxmi Narain, AIR 1960 SC 770. Details of corrupt practice have not been given in the affidavit as the same have been given in the election petition itself and as such the affidavit is not an integral part of the election petition. Reliance was placed on Mohan Rawle v. Damodar Tatyaba, 1994 (2) SCC 392 and also on the meanings of the word 'integral given in two Law Laxicons i.e. Webstor's Dictionary and Random House Dictionary. In U.S. Sasidharan v. K. Karunakaran, AIR 1990 SC 924, relied upon by the learned counsel for the respondent, affidavit itself gave the details of the corrupt practice and as such it was held that it was an integral part of the election petition. In F.A. Sapa v. Singora, AIR 1991 SC 1557 : (1991 AIR SCW 1492), relied upon by the learned counsel for the respondent, defects have been held to be curable. It has also not been shown as to how the respondent has been prejudiced. Quotation was also read from 'Durga Saptashati' to show that Laxmi is great Goddess. Secularism is basic part of the Constitution. Political parties, group of persons or individuals who seek to influence the people with a view to come to political power are required to abide by the Constitution and the laws including secularism, sovereignty and integrity of nation. Religion cannot be mixed with politics and if it is so, it violates the basic features of the Constitution. He placed reliance on S.R. Bommai v. Union of India, 1994 (2) Judgment Today 214 (AIR 1994 SC 1918) paras 163 and 165.
11. In reply to the aforesaid contentions of the learned counsel for the petitioner, Shri Lekh Raj Mehta, learned counsel for the respondent, contended as follows : The deletion of the word "systematic" from Section 123 of the RP Act has no material bearing in this case. The facts and circumstances of the reported cases, relied upon by the learned counsel for the petitioner, are quite different and distinguishable and they are not applicable in this case. S.R. Bommai v. Union of India, JT 1994 (2) 214 (AIR 1994 SC 1918) (SC) does not help the petitioner, placing reliance on paras 162, 163, 207, 208, 322, 323, 371 and 452. It could not be pointed out as to which portion of the speech, quoted at page 7 of the election petition, attracts Sub-section (2) or Sub-section (3) or Sub-section (3A) of Section 123 of the RP Act. Necessary particulars of any corrupt practice have not been given in the election petition as is clear from the election petition itself and also from the accompanying affidavit. Affidavit filed along with the election petition is no affidavit in the eye of law. News item contained in Rajasthan Patrika (Annexure 1) also does not attract the provisions of either 'Sub-section (2) or (3) or (3 A) of Section 123 of the RP Act. Shri Arjun Singh and others moved the Election Com mission of India for de-registration/ deracination of the Bhartiya Janata Party (BJP) as a political party and to freez its symbol LOTUS on the ground that it indulged in religious activities by undertaking Rath Yatra which was opposed to the secularism to which it had shown its commitment under Section 29A of the RP Act at the time of seeking registration. By its order dated December 19, 1992, the election Commission of India rejected the petition of Shri Arjun Singh and others, observing that a political party has a right to use the symbol reserved for it in the activities undertaken by it for the furtherance of its electoral prospects and to woo a particular section of the electors.
12. On May 12, 1994, the learned counsel for the respondent moved an application stating that the petitioner has submitted a cassette with the election petition containing the alleged speech of the respondent whose highlights and features have been at page 7 of it (election petition), extracts have been taken out of context, they do not reveal even its substance, its relevant portions have deliberately been omitted with a view to create a false impression and in the absence of its complete transcript it would not be possible to properly decide the preliminary objections and praying that the petitioner be directed to produce a full transcript of the alleged speech recorded in the cassette. After taking the reply of the petitioner and hearing the learned counsel for the parties, the petitioner was given an opportunity to submit a correct, complete and duly verified transcript of the speech contained in the said audio cassette vide order dated May 17, 1994; It was also observed in this order that the respondents may also submit a correct and complete transcript of the speech contained in the said audio cassette whose copy has been given to him by the petitioner. On May 20, 1994, both the parties submitted the transcript of the speech alleged to be of the respondent contained in the said audio cassette.
13. It has been observed in M. Karunanidhi H.V. Handa, AIR 1983 SC 558 at page 563 para 12, as follows :--
"As observed by this Court in Jagan Nath v. Jaswant Singh, 1954 SCR 892 : (AIR 1954 SC 210) an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power., It also added that:
"It is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition 'seeking such interference must strictly conform to the requirements of the law."
14.. It is well settled law that preliminary objections against an election petition may be raised even before filing written statement (Udhav Singh v. M.R. Scindia, AIR 1976 SC 744 para 21) and they should be decided at the initial stage (K. Kamaraja Nadar v. Kunju Theva, AIR 1958 SC 687 para 41).
15. The question for consideration is whether the election petition lacks material facts and particulars and accordingly it does not disclose cause of action. Paras Nos. 1 to 6 of the election petition contain introductory averments. In para No. 7 it has been averred that the respondent :has committed corrupt practices and has summarised the provisions of Sub-sections (2), (3) and (3 A) of Section 123 of the RP Act and has also referred them: According to this para, the petitioner has based his case 'on the following heads of corrupt practices i---
(1) Induced the electors that they will become the object of divine displeasure, (2) Appealed to voters on the ground of their religion and community, . ;
(3) Appealed to and used religious symbol and (4) Promoted feeling of hatred between different classes of citizens on the ground of religion and community.
First part of Sub-para (a) of para 8 gives names of the villages and approximate time of the commencement at the election meetings addressed by the respondent on October 27, 1993. Its second part has been quoted in para 3/supra. The actual words used by the respondent in these speeches (except some sentences of the speech addressed at Falna), attracting the provisions of Sub-section (2) or (3) or (3A) of Section 123, RP Act have not been given. Necessary details on the 'points mentioned in paras 6(a)/supra and 6(b)/ supra in respect of these meetings have also not been given. In his reply dated April 3. 1994 to the preliminary objections, the petitioner has given the names and addresses of 'some voters' present in these election-meetings. In respect of Falna meeting, highlights and features of the speech given by the respondent have been given at page 7 of the election petition (quoted at page 2 para 3/supra), similar highlights and features have not admittedly been given, in respect of all other meetings. Thus para 8(a) of the election petition lacks material facts and particulars. No cause of action stands disclosed. In para No. 8(b), it has simply been stated that the proceedings of these meetings were briefly reported.' published in the Rajasthan Palrika, Jodhour Edution dated October 28, 1993 under the caption "MATDATA VOTE KI KHATIR APNI IMANDARl NAH1 BENCHE. "In Sub-para (c), it has been averred that the said Rajasthan Patrika of October 28, 1993 is submitted herewith and and marked as Annexure I. In Sub-para (d) of para 8, it has been averred that in Falna speech the respondent incited the Hindus in the background of demolition of structure of Babri Masjid on December 6, 1992 as also construction of Ram Temple. Its highlights and features have been quoted in para 3/ supra. It has simply been averred in para, 9 that the speeches of the respondent and of other speakers, given at Falna, were recorded in a tape by Babulal son of Pukh Raj Jain resident of Bali, the petitioner procured the same and the original cassette has been filed with the election petition. Paras No. 10, 11 -and 12 of the election petition contain formal averments regarding the declaration of .the election as null and void, filing pf the election petition and deposit of the security amount. There remains paras Nos. 8(c) and 8(d) only for consideration. It is to, be seen whether these paras Nos. 8(c) and 8(d) contain avermeats making out reasonable cause of action.
16. FIRST HEAD (Divine Displeasure):
The entire speech contained in the tape-record whose transcript, papers Nos. 54 to 61, has been filed, particularly the portions given at page 7 of the election petition, has no indication that the speaker : (respondent) induced the electors to believe that they will become the object of divine displeasure and thus interfered with the free exercise of their electoral rights (para No. 7 of election petition). No case is made out under Section 123, RP Act.
17. SECOND HEAD (Appeal on the ground of Religion) :
It has, been averred in para 7 of the election petition that the respondent has committed corrupt practice by making appeals to voters to vote on the ground of their religion and community. No material facts and particulars have been given regarding this corrupt practice in this para, It has been slated in the opening pan of pura 8 that the same are being given in the ensuing paragraphs. As already observed above, para 8(a) gives the names of villages and time on which meetings were held and the respondent delivered speeches. It has also been averred that in the aforesaid meetings, the respondent on a public address system made an appeal in the name of Lord Ram, the main theme of which was for seeking votes in the name of Ram and also referred to the demolition of the structure of Babri Masjid at Ayodhya for promoting hatred between different classes of India on the ground of religion and community. It has been averred in para 8(b) that the proceedings of these meetings were briefly reported/published in the Rajasthan Patrika dated October 28, 1993 Jodhpur Edition under the caption "MATDATA VOTE KI KHAT1R IMANDAR1 NAHI BECHE". In para 8(c) it is stated that a copy of the said Rajasthan Patrika is submitted herewith and marked as Annexure l. At the risk of repetition, it may again be observed, no material facts and particulars have been given in the election petition regarding the 15 meetings held on October 27, 1993 (except Falna meeting). Relevant portion of Rajasthan Patrika Annexure I has been quoted in para 4/ supra and has been discussed in para 18/infra. Para 8(d) deals with Falna speech. Its opening part runs as under:--
"In Falna speech, he incited the Hindus in the background of demolition of structure of Babri Masjid on 6-12-92 as also construction of Ram temple. The highlights and features of the aforesaid speech are quoted as under :"
In this opening part, there is no reference that the respondent appealed to vote or to refrain from voting on the ground of religion or community. It is very significant to note that there is no reference in para (a) of the affidavit accompanying the election petition regarding this head of corrupt practice. It has been observed in Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201 at page 1212, as follows :--
"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."
This extract has also been referred to in Gadakh Yashwantrao Kankarrao v. E.V. alias Vala Saheb Vikhe Patil, 1993 (6) JT 345 : (AIR 1994 SC 678), para 24.
As per the law laid down(AIR 1969 SC 1201), the election petition should have given material facts relating to each head of corrupt practice in separate paras and similarly their particulars in other paragraphs, referring the head of the corrupt practice. There is no reference of this head of corrupt practice in the affidavit. In other words, there is no affidavit in support of this head of corrupt practice. No case of corrupt practice of this head is made out and so also cause of action.
18. THIRD HEAD (Appeal to Religious Symbol):
It has been averred in para 8(a) of the election petition that the respondent also appealed to the voters by using religious symbol of Goddess Laxmi and also made an appeal to the voters to put their seal on 'Kamal' because on the day of polling there was 'Dhanteras' and Laxmi had originated from Kamal. In support of it, Rajasthan Patrika of October 28, 1993 Annexure I has been filed. Its relevant portion has been quoted in para 4 supra. No other portion of Annexure I attracts any other provision of Section 123 of the RP Act. Admittedly, election symbol 'Kamal' (Lotus) was allotted to the respondent and the poll was on the day of 'Dhari Teras'. Proviso to Sub-section (3) of Section 123 of the RP Act runs as under : -
"Provided no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purpose of this clause."
By saying that Laxmi had originated from Lotus and seal be, therefore, put upon it does not mean that appeal to religious symbol was made or it was used when the abovequoted proviso clearly provides that no symbol allotted to a candidate shall be deemed to be a religious symbol. In Shubh Nath Deogam v. Ram Narain Prasad, AIR 1960 SC 148, relied upon by the learned Counsel for the petitioner, leaflets addressed to the electorate mainly consisting of Adivasis issued by the candidate's party in the name of Cock which was the party's symbol and which amongst the Adivasis formed a very important integral part of religious ceremonies, invoked the wrath of the deities on the electorate in case they forgot the 'cock' i.e. forgot to vote for the party of which it was symbol. In the instant case, it was not said by the respondent that if seal was not put on Kamal voter would incur its wrath or displeasure. After quoting a paragraph from the said case, AIR I960 SC 148, it has been observed in Raman Bhai v. Dhabi Ajit Kumar, AIR 1965 SC 669 at pages 674-75, para 12, as follows: --
"We have quoted the learned Judge to point out that a reference to prophets of religions or to deities venerated in a religion or to their qualities and deeds does not necessarily amount to an appeal to the religious sentiment of the electorate. Something more has to be shown for this purpose as indeed, according to the majority of the Judges who decided the case, was established therein. If for instance, the illiteraie, the orthodx or the fanatical electors are told that their religion would be in danger or they will suffer miseries or calamities, unless they cast their vote for a particular candidate, that would be quite clearly an appeal to the religious sentiment of the people. Similarly if they are told that the wrath of God or of a deity will visit them if they do not exercise their franchise in a particular way or if they are told that they will receive the blessings of God or a deity if they vote in a particular way, that would be an appeal to the religious sentiment. Similarly if they are told that they should cast their vote for a particular candidate whose election symbol is associated with a particular religion just as the Cross is with Christianity, that will be using a religious symbol for obtaining voles. But where, as in the case of the Hindu religion, it is not possible to associate a particular symbol with religion, the use of a symbol even when it is associated with some deity cannot, without something more, be regarded as a corrupt practice within the meaning of Sub-section (3) of Section 123 of the Act. For instance, a particular object or a plant, a bird or an animal associated with a deity is used in such a way as to show that votes are being solicited in the name of that deity or as would indicate that the displeasure of that deity would be incurred if a voter does not react favourably to that appeal, it may be possible (o say that this amounts to making an appeal in the name of religion. But the symbol standing by itself cannot be regarded as an appeal in the name of religion."
Thus no case of use of and appeal to religious symbol within the meaning of Section 123 of the RP Act is made out. No cause of action has arisen on this ground.
19. FOURTH HEAD (Promotingieeling of hatred) The case of the petitioner is that the respondent by his speech, quoted at page 7 of the election petition (quoted here in para 3 supra), had also promoted feeling of hatred between different classes of citizens of India on the ground of religion and community for the furtherance of the prospects of his (respondent) election or for prejudicially affecting the election of Mitha Lal Jain who was the main contesting candidate (paras 7 and 8(a) of the election petition) and also incited Hindus in the background of demolition of structure of Babri Masjid on December 6, 1992 as also construction of the Ram temple (para 8(d) of the election petition). Admittedly, transcript of the full speech was not filed by the petitioner along with his election petition. In compliance with the order dated May 17, 1994, it was filed on May 20. 1994. To ascertain the impact and effect of an election speech on voters, it is necessary to examine the entire speech and not to rely upon certain portions of it. It has been observed in K.M. Mani v. P. J. Antony, AIR 1979 SC 234 at page 238 of para 11. as follows : --
"Secondly, it is necessary for the purpose of appreciating an argument of this nature bearing on the contents, nature and extent of an allegation regarding the commission of a corrupt practice, to read the allegation as a whole, and not to disjoin it, or to tear a line here or a line there, from the context."
It has further been observed in the same para at page 239, as follows :--
"The proper way to examine a controversy like this is to consider the substance of the allegation and not its mere form. It may be made in a separate sentence or sentences, and it may also be that it may appear to be disjoined from the earlier allegation because of inartistic drafting, but it is the substance of the allegation which is material and not its mere form. It is equally necessary that the allegation should be read as a whole and construed properly so as to under stand its true nature and content."
Reference of Kultar Singh y. Mukhtiar Singh, AIR 1965 SC 141, may also be made here. As such it is necessary to read the entire speech. On its perusal, it is found that the respondent has said many more things, completely demolishing the said case of the petitioner. In this connection, it is necessary to quote here the following portions of his speech :--
^^ogka ij tc eSa vkxs c<k iatkc ds xq:vksa vkuUniqj lkgc ds xq:}kjs esa eSa x;k ogka eSaus fl[[k ljnkjksa ls iwNk fd vius esjk Lokxr D;ksa fd;k gS A mudk tokc Fkk fd vkt t; Jh jke ds dgus ij gh ;fn dksbZ pquko ugha yM+ ldrk rks lrJh vdky ds dgus ls Hkh pquko ugha yM+sxk A bls dsoy t; Jh jke dk elyk ugha gS ;g /keZ dk dksbZ Hkh ukjk yxk nsxk og vkneh pquko ughaa yM+ ldrk &&blfy, geus ns[kk fd jke vkSj lrJh vdky ;s nksuksa ds uke ysus ij gh ;fn pquko dk ipkZ [kkfjt gks tk, rks gesa HkS: flag 'ks[kkor dk Lokxr djuk pkfg;s vksj eSnku esa ge Lokxr djus ds fy;s vk, gSa A ysfdu ogka ls fudydj eSa fnYyh igaqpk] pkanuh pkSd esa izos'k fd;k rks ogka lqugjh efLtn gS] lqugjh 'kqØokj dk fnu Fkk] lqugjh efLtn ds ckgj gtkjksa eqlyeku [kMs+ Fks A iqfyl dks Mj Fkk fd eqlyeku fojks/k djasxs ogka iqfyl dh fcYdqy ,d ykbZu [kM+h dj nh A tc esjh ;k=k m/kj ls fudyh rks ogka ds eqlyekuksa us iqfyl dks dgk fd vki gV tkvks ge ekyk igukuk pkgrs gSa ekyk igukbZ vkSj ekyk igukus ds lkFk gh n'kkys 'kky n'kkyksa ls eqg iqjk Hkj fn;k A eSus ogka yksxks ls iwNk] eqlyekuksa ls dgk fd esjk Lokxr D;ks dj jgs gks tc Hkxoku Jh jke dk uke ysus ls pquko dk ipkZ [kkfjt gks ldrk gS] lrJh vdky dk uke ysus ls pquko dk ipkZ [kkfjt gks ldrk gS rks vYykg gks vdcj dk uke ysus ls mlh esa ipkZ [kkfjt gks tk;sxk A ;g yM+kbZ dsoy fgUnqvksa dh ugha gS fgUnq eqlyekuksa dh nksuksa dh feydj yM+kbZ gS] vkSj bl yM+kbZ esa dk¡xzsl ikVhZ dks ijkftr djds NksM+saxs A eSus ml fnu ns[kk fd vxj yksx lgh pht dks lgh :i esa ys ysa rks mldk fojks/k djus dk Hkh lgh fu.kZ; gks ldrk gS----------------------------------------
dk¡xzl ds usrkvksa us tSls vaxsztksa us bl <kaps dks cpkdj fgUnqvksa vkSj eqlyekuksa dk ruko iSnk fd;k fgUnqLrku dk caVokjk djk;k mlh rjg ls dk¡xzsl ds usrkvksa us fopkj fd;k fd ;s <kapk jgsxk rks <kps dks ns[kdj fgUnq vkSj eqlyeku dks nkuksa dks yM+krs jgsaxs vkSj yM+krs jgsaxs vkSj eqlyeku dks dgrs jgsaxs fd vxj rqeus dk¡xzsl dk lkFk ugha fn;k rks <kapk VqV tk,xk-----------------
ysfdu ge efLtn ds f[kykQ ugha gS dksbZ bl /kks[ks esa ughsa jgs fd efLtn ds f[kykQ gSa tSls eq>s fgUnq gksus dk xoZ gS eqlyeku dks eqlyeku gksus dk xoZ gS eq>s Hkxoku jke dh t; t;dkj djus esa xoZ gksrk gSa rks eqlyeku dks vYykg gks vdcj dgus dh NwV gS tks Hkh /keZ ekurk gS oks /keZ ekus dksbZ xq: xksfoUn flag lkgc dh t; cksys eq>s vkifÙk ugha gS dksbZ vYykg gks vdcj dgs eq>s vkifÙk ugha gS dksbZ gj gj egknso dgs eq>s vkifÙk ugha gS ysfdu tks vYykg gks vdcj dks ugha le>s tks gj gj egknso dks ugha le>s tks Hkxoku egkohj dks ugha le>s tks Hkxoku jke vkSj Ñ".k dks ugha le>s mu yksxksa ds lkeus dsoy oksV tks nsork gS ml nsork dk uke ysus okys dks gh oks le>rs gSa ckdh dks ugha le>rs-----------------------
eafnj VwVsxk rks eafnj dk nnZ fdldks gksxk tks efUnj esa fo'okl j[krk gS ysfdu ;g dk¡xzsl ds ;s uk eafnj esa fo'okl j[krs gS ] u efLtn esa fo'okl j[krs gSa ;s okasV esa fo'okl j[krs gSa uk efUnj VwVus ls budks nnZ gksrk gS uk efLtn VwVus ls nnZ gksrk gS budkrks oksV c¡d VwV tk, rc nnZ gksrk gS------------------------------
vkt eqlyeku efLtn ] cukuk pkgs jktLFkku esa eq>s txg crk nsa eSa cuokÅ¡xk A vkt eqlyeku iapdks'kh ds ckgj dksbZ efLtn cukuk pkgs eSa cuokÅ¡xk vkSj vxj eqlyeku T;knk esjs ij fo'okl ugha djaas rks vatesj pys tkos vtesj esa xjhc uokt [oktk lkgc dh njxkg gS njxkg cgqr iqjkuh gS fgUnqLrku gh ugha fons'kksa ds eqlyeku ogka vkdj ft;kjr djrs gSa ml njxkg ij vkt rd dk¡xzsl ikVhZ dk jkt jgk gS ,d u;k iSlk [kpZ ugha fd;k A ;s HkS:flag 'ks[kkor ftldks Hkkjrh; turk ikVhZ dk lnL; dgrs gSa] lnL; gwW Hkh Hkjrh;
laLÑfr esa fo'okl j[krk gw¡ A Hkkjrh; laLÑfr gj vkneh dks viuk&viuk /keZ ekuus dh NwV nsrh gS] vkSj blfy, eSaus ml njxkg esa lk<s ikap djksM :i;s yxkdj mldk fodkl djk;k gS vki tkdj nsf[k, esjs fnekx esa uk fgzzzUnq gS uk eqlyeku gS eSa [kqn fgUnq gw¡ bldk eq>s xoZ gS ysfdu tc eS eq[;ea=h cuk Fkk rks eSaus Li"V :i ls dgk Fkk HkS:flag fgUnq gks ldrk gS( HkS:flag jktiwr gks ldrk gS] ysfdu jktLFkku ds eq[;ea=h ds u dksbZ tkr gS] u dksbZ /keZ gS] u dksbZ ikr gS oks jktLFkku dh turk dk lsod gS vkSj fcuk tkfr ikfr ds HksnHkko ds oks lsok djsxk vc <kapk VwV x;k] vc dk¡xzsl dk <kapk rksM+us dh ckjh gS] ;g dSls ckth iwjh gksxh------------------
The above quoted portions of the speech show that the respondent was given rousing reception by Sikhs in their Gurudwara at Anandpur Sahib and by Mohmmedans in front of their golden mosque at Delhi. He also said in it that Hindus are not against mosques, every person is free to profess and practice his religion, he would construct mosque at the place pointed out in Rajasthan by Mohammedans and also outside 'Panchkosi', he spent rupees five crores and fifty lacs in the development of "Garib Nawaj Khwaza Sahib Durgah" at Ajmer, he is proud of being Hindu and also Rajput but when he became Chief Minister he said that as the Chief Minister he had no caste, creed or religion and he would serve the people of Rajasthan without distinction of any kind. Immediately after questioning as to who would be pained to see the demolition of a mosque and answering that persons who have faith in it would be pained, similar question was put and answer was given for a temple. If the entire speech of the respondent is read along with the above-quoted portions, no case of promoting feelings of hatred between different classes of citizens of India on the ground of religion and community or incitement of Hindus in the background of demolition of Babri Masjid on December 6, 1992 and construction of Ram Temple for the furtherance of the prospects of respondent's election is at all made out. No cause of action has arisen on this ground.
20. DEFECTIVE AFFIDAVIT :
Proviso to Sub-section (1) of Section 83 of the R P Act requires that where the petitioner alleges any corrupt practice, the election petition shall also be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practices and the particulars thereof. Rule 94 A of the Conduct of Election Rules, 1961 requires that it shall be in Form 25. It is a statutory requirement. Regarding the importance of the affidavit, it has been observed in M. Kamalam v. V.A.S. Mohammed, AIR 1978 SC 840 at page 844, para 5, as follows : --
"Now the first question which arises is as to what constitutes an election petition for the purpose of Section 81, Sub-section (3). Is it confined only to election petition proper or does it also include a schedule or annexure contemplated in Sub-section (2) of Section 83 or a supporting affidavit referred to in the proviso to Section 83, Sub-section (1) ? To answer this question, we must turn to Section 83 which deals with contents of an election petition. Sub-section(1) of that section sets out what an election petition shall contain and provides that it shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. The proviso requires that where the petitioner alleges any corrupt practice, the election petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof, The context in which the proviso occurs clearly suggests that the affidavit is intended to be regarded as part of the election petition. Otherwise, it need not have been introduced in a section dealing with contents of an election petition nor figured as a proviso to a Sub-section which lays down what shall be the contents of an election petition.
xxxx xxxx xxxx xxxx Similarly, and for the same reasons the
affidavit referred to in the proviso to Section 83, Sub-section (1) also forms part of the election petition. The, election petition is in truth and reality one document, consisting of two parts, one being the election petition proper and the other being the affidavit referred to in the proviso to Section 83, Sub-
section (1)."
21. Form No. 25 of the Conduct of Election Rules, 1961 runs as under: -
"FORM 25 (See rule 94A) Affidavit 1 ........... the petitioner in the accompanying election petition calling in question the election of Shri Shrimati.......
.... (respondent No. in the said petition) make solemn affirmation, oath and say -
(a) that the statements made in paragraphs ....... of the accompanying election petition about the commission of the corrupt practice of .......... and the particulars of such corrupt practice mentioned in the paragraphs ....... of the same petition and in paragraphs ...... of the Schedule annexed thereto are true to my knowledge :
(b) that the statements made in paragraphs ....... of the said petition about the commission of the corrupt practice of ......
and the particulars of such corrupt practice given in paragraphs ....... of the said petition and in paragraphs ....... of the Schedule annexed thereto arc true to my information;
(0 (d) etc. Solemnly affirmed/sworn by Shri/Shrimati.............. at....... this .......day of. ...... 19 .
Before me Magistrate of the first class/ Notary/Commissioner of Oaths.
Here specify the name of the corrupt practice."
Incorporation of "(c) (d) etc." and "here specify the name of the corrupt practice in the above quoted pro forma of the affidavit is very significant. According to this Form, there should be two separate and distinct paras (one based on knowledge and other based on information) for each head of corrupt practice If there are four heads of corrupt practices, the affidavit should contain eight paragraphs.
22. Affidavit of the petitioner Mohan which was filed along with the election petition has two paragraphs only. They run as under:
"(a) That the statements made in paras 7 and 8 and its sub-paras (a) to (d) and 9 o! the accompanying election petition about the commission of the corrupt practices of undue influence as defined under Section 132(2), appeal of religious symbol and use thereof as defined in Section 123(3) and promotion of hatred between different classes of citizens of India on the ground of religion and community as defined in Section 123 of the Representation of the People Act. 1951 are true to my knowledge and the documents referred to therein, 2 That the averments relating to the ground for setting aside the election of the respondent on the basis of corrupt practices set out in para 10 of the election petition and also the prayer clause are true to my knowledge."
The above quoted paragraphs of the affidavit show that the contents of paras Nos. 7, 8 and 9 of the election petition have been verified to be true on the basis of knowledge and documents referred to therein. Similarly, contents of para No. 10 of the election petition and prayer clause have been verified on the basis of knowledge. No paragraph of the election petition has been verified on the basis of information. The pro forma of the affidavit does not require verification on the basis of documents. Particulars of any of the aforesaid corrupt practices have not at all been verified as required in the above quoted prescribed form of affidavit. Statements of facts and particulars have not separately been pleaded in respect of each head of corrupt practice in the election petition. Heads of the corrupt practices spelt out by the highlights and features of the Falna speech given at page 7 of the election petition have not been given in the affidavit and also in it. In other words, different parts of Falna speech have not been dissected info aforesaid heads of corrupt practices. It has been observed in Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201 at page 1212, para 29,--
The fact which constitute the corrupt practice must be stated and the fact must be correlated to one of the head of corrupt practice."
In this affidavit, there is no verification of statements of facts and particulars of the corrupt practice relating to the appeal for voting on the ground of religion (Section 123). It has also not been shown which paras of the election petition and also of the accompanying affidavit arc based on knowledge and which on the documents referred to therein. It appears from the contents of the election petition, accompanying affidavit and Schedule I of the petitioner's reply dated April 5. 1994 that the petitioner Mohan was not present in any of the election meetings of the respondent held on October 27, 1993. The verification of the Schedule runs as under :--
"I, Mohan (petitioner), on this 3rd day of April, 1994 verify ............. are true on the basis of the information received and believed to be true from the persons referred to therein."
It is not understandable as to how the contents of para 8(a) of the election petition have been verified by the petitioner on the basis of his knowledge on the face of the above verification of the Schedule. According to the provisions of Section 83(1)(b) and (c) read with Order VI, Rule 15, C.P.C. there should be at least two distinct and separate paragraphs, one for the statement of fact and other for the particulars, in respect of each head of corrupt practice in the election petition. The abovequoted Form of the affidavit also confirms it otherwise proper affidavit as required under Rule 94A cannot be filed. The election petition under consideration is not so. The affidavit filed cannot be cured in view of the aforesaid basic defects in the election petition itself. The affidavit filed in support of the election petition does not at all comply with the mandatory requirements of Rule 25 A and Form 25. It suffers from aforesaid fatal defects. It is no affidavit in the eye of law. On this ground also, the election petition deserves rejection.
23. It has been observed in F. A. Sapa v. Singora, AIR 1991 SC 1557:(1991 AIRSCW 1492) at page 1569, para 16, that a simple verification of election petition was considered insufficient and, therefore, the need for an affidavit in the prescribed form was considered necessary. The above defects noticed in the affidavit filed along with the election petition in compliance with the provisions of Section 83(1)(c) of the RP Act were not subject matter of dispute in the decision reported in F. A. Sapa v. Singora, AIR 1991 SC 1557 and also in any reported case referred in it.
24. In view of the aforesaid discussion, it is clear that the election petition does not disclose cause of action and it has been filed without a valid affidavit. In this context weighty observations made in Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253 : (1986 All LJ 625) para 4 may be quoted here. They run as follows:---
"And also notwithstanding the fact that election involve considerable expenditure of public revenue (not to speak of private funds) and result in loss of public time, and accordingly there would be good reason for not setting at naught the election which reflects the true will of the people lightly. In matters of election the Will of the people must prevail and Courts would be understandably extremely slow to set at naught the will of the people truly and freely exercised. If Courts were to do otherwise, the Courts would be pitting their will against the Will of the people, or countermanding the choice of the people without any object, aim or purpose. But where corrupt practices are established the result of the election does not echo the true voice of the people. The Courts would not then be deterred by the aforesaid considerations which in the corruption scenario lose relevance. Such would be the approach of the Court in an election matter where corrupt practice is established. But what should happen when the material facts and particulars of the alleged corrupt practices are not furnished and the petition does not disclose a cause of action which the returned candidate can under law be called upon to answer ? The High Court has given the answer that it must be summarily dismissed. The appellant has challenged the validity of the view taken by the High Court."
25. Accordingly, the election petition is rejected with costs.