CHARAN LAL SAHU & OTHERS v. GIANI ZAIL SINGH & ANOTHER

Citation: [1984] 2 S.C.R. 6

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, P.N. BHAGWATI, AMARENDRA NATH SEN, D.P. MADON, M.P. THAKKAR

Case summary

ns, inclllding the 'right to _contest or· challenge an election. The election can neither be questioned nor set aside on any othef grollnd.

Judgment text

; • CHARAN LACSAHU & OTHERS .. v. , i GIAN! ZAIL SINGH & ANOTHER. .. December 13, ! 983 '. (V. V. CHANDRACHUD, C. J P,N. BHAGWATI, AMARENDRA NATH "SEN, D. P. MADON AND M. P. THAKKAR, JJ. ) ConSti~ution of1t1Jia-1950:. A;ticles 71(1) and 84(a) Sec. 18(1) of Presidential ... _and Vice-Piesidential Elections Act 1952-Whethef ultra vires Article 71(1). • - Presidential election-Candidate co~tesiing such election-Whether to tuke ·oafh prescribed by A~ticle 84(a). • -"_Presidential and Vice-P... ,esidential Elections Act, 1952Secliou13(a) read with section 14A (! )-:-'Candidate' at Presi«ential election-Who is-One •duly no111inated' · or_ who Claims to have been duly •nominated'-Who has locus standi to challenge 'election. , Section ~8(1) and 19-Election petition-Whether Could be filed .. on Kround that elected c. andltjate not q '_suil'! ible personj for holding the office. • Section 18(2}--Un_due influence ilnd bribery at an election-Canvassing for a candidate-Whether amouliis tO undue.

influence. Pleading & Practice : Election Pctifions-Pleadings-Precise specific and u,t1a11. tbiguous-Necessity for.. . . indian Penal- Code-Section 171C-Undue influence at electio11s. ;_Can·vassing- Whether amounts to undue influence. -" ; · Words & Phi·ases-Meaning of "Connivii'nCe" whether means "conseni". For the election to the office of the Pfesiden'\ of India, the Returning officer aeccPted the nominatiOn papers of two candidates only viz. Oiani Zail Singh • and Shri H·R. Khanna. The:election was held On July 12,1982, an·ci Giani zail Sirigh was dec13. rcd as the suCcessful candidate. ifhe petitioners in Election Petition Nos. 2 and 3 of 1982 who had filed their nomination paPers, contested the election On vari_ous grounds and alleged that Respondont 1. Giani zail Singh exercised undue infiueilce over the yotcrs through his confidants. ' · • t CHARAN LAL V. ZAIL SINGH 7 A preiiminary objection to the maintainability of these'petitioiis was raised on behalf of Respondent no.

l and the AttorneY General. It was contended that neither of the two petitioners was a 'candidate' within the meaning of section J3(a) of the Presidential and Vice-Presidential Elections Act, 1952 and since under section ·14A,·an election petition can be filed only by a persJn. who was a candidate -~ t the election, the petitioners had no standing to :file thC petitiolls. . • This Court framed the foJlowing prr. Iimin,ary issue : "Does the petitioner r· have no locus stamii to maintain the petition on the ground that he-Was not a ·'candidate' withi~. the meaning of . sect~On l 3(a) read wiih . section 14A of . Presidential and ViceRPresidential Elect. ions Act 1952? Election. Petition No. 4 Qf 1982 was filed by 27 Meclbers of Parlia111ent challen"ging the electiOn of Respondent No. 1, Giani Zail Singh as. the President of India. Contending that the petitioners jointly sponscred the can°didature Of Shii H. R.

Khanna,· a former Judge and that Giani zail Siilgh was 'not a ·"suitable' perso. n" for holding the· high office of the President of India, and that : (1) Shri M. H. Beg former Chief Jus~ice and Chairman of the Minorities Commission, was engaged by Respondent J and by the Prime Minister "for • influencing the Votes of the Minority Communities"; (2) that a Cabinet Minister of the Union -Government, a 'suppdrter ·and cfose associate'. of Respondent 1, exercised undue influence civer the voters by n1isusing the a·overnR . · ment machinery and that a statement was issued by him through the Press · Information Bureau asking the voters to vote for Respondent 1, (3) that the Prime ,Minister participated. in the election can1p. aign of ReSpondent 1 and· misused the Government machinery for that purpose, (4) that th~ Prime Minister made a conunu~al appeal to the Akali Dal that its members should vote for Respondent J.

, and (5) that Govern1nent helicopt_ers arid cars weie misused for the purpose of the election of Respondent 1, and that thesr various acts were committed. by" supporters of Respondent 1 with his connivance. - 't' It was contended on behalf of ResP,ondent 1 that even assuming that the. aforesaid n . the. ground • that he is not a sutitable person for holding that office'', (2) '. 'whether the "averments iri the EleCtion :Petition, assuming them to be true and c;:orrect-, disclose any cause of action for setting aside the election of the returned candidate (Respondent 1) on the grounds stated in section 18 (l)(a) of the J Act". Dismissing the election Petitions, I HELD: • 0/ection Petitions Nos. i & 3of1982. 1. The petitioners have no locus standi to file_theelection _petitions ·_jl sincethey were neither duly nominated rior can they clain1 to have been dulx ' ' ominarg as candidates at the Presidential election. [16 HJ· 2. Three pre-conditions govern an election petitio.

n-by which a PresiC:enM A. · tiaf election is challanged. In the first place such a petition has to be filed in the Supreme_Coui_t. SeCopdly, th~ petition mUst disclose a c)Jallange to the election on one or·more grounds specified in subMsection (. J) ·of secfion 18 or section 19. ~Thirdly' an cleC'. tion petition can -be preseiited only by a person who was a candidate at the presidential election or by twenty or rr:. ore e1ect0rs joined together as. petitioners: [14 E~FJ ... •. 3. ·The definition of the ~ord 'candidate. > in srction 13 (~) of the Act consists of two parts. 'Canclidate' means a _per. son who has. either _been duly nominated as a candidate·at a Presidential election or a person who claims to have b~n duly nominate4. · Section SB (1) ·(a) of the Act provides th"at on or beforo the date appc)inted for rnakfng nominations·, each can. didate shall· deliver to the Returning Officer a nomination paper completed i. n the prescribed form, subscribed by the cand.

idate as assenting to the noni. il,1ation, and '~in the case ofPresidential election, also by, at least ten electors as proposei;s and at least ten c_lectors as seconders". [14 0-H; tS AJ • In the instant case, neither ""of the t"wo petitioners was duly nominated . The nomination paper~ filed by them ·y,rere not eubscribeU by ten eiectOrs . '" a.! I proposers and ten electors as. seconders. " It was precisely for this reason that their nomination papers were rejected by the Returning Officer. Since the nomination papers of the two petitioners were ·not subscribed as required by Section SB (l) (a) of the Act, it follows that they \Vere not duh; Dominated as "candidates·· at the electi6n. ·[15 A-BJ · 4. The. occasion for a person to make a claim that he was duly nominated can arise only if the nomination paper complies with the statutofy reqμirements · which govern the filing of rt0Il,1ination ·papers arid not other. wise.

The claim that he was 'duly' nominated necessarily implies and inyolves the claim that •• hi. s nomfnaiion paper col):forme~ to the requirements of the- statute. A contestant. whose . nomination paper is not su·b~cribed. by ·at least ten electors"as proposers and ten electors as ·seconders, as required by S. 58 (1) (a) of the Act, cannot therefore claim to have been duly nom'ina_ted, any more than ii Cop. testant who had not, subscri~eci his assent to his own nomina,tion can. The claim of a contestant that he was duly nominated must arise out of his com-· pliance w. ith·provision of the Act, and not out of the vii;>lation of the Act.. Other- , wise, a person: who had not filed any nomination paper at all but who had 9nly informed the· Returning Officer oralfy that he desired to contest the election could also contend that he "claims to have beeh duly nominated as· a candidate·~ [15 F-H; 16 A] o In the instant case, the nomination papers of the petitioners were rightly .

rejected on· the groundeof n,on~corp. plia·nce with ~he mandatOJ. 'Y requirement" of '· 58 (1) (a) of th~ Act. Their claim [that they have been duly nominated is not'within the framework of the Act but. is dehors ihe Act. It Cannrit the"refore be entertained. {16 q Charan Lal Sahu v. Shri Fakruddin Ali Ahmed, (A. I. R. ) 1975 S. C. 12S8; Ch;ran Lill Sahuv. Neelam Sanjeeva Reddy, [1978] 3 SC~ J, referred to. CHARAN LAL V. ZAIL SINGH 9 5. It is o(tli~ essence of the functioning of a democra"cy tha:t CJections. to public office~ must -be open to the Scrutiny of an independent Tribunal. ~ [17 Di . . • • In the instant cases, it is•regrettable that eiection petitions challenging the· ~. election •. fo. the high office of the President of In_dia should be filed in a • cavalier'Tashioil. The petitions- have an extempore appeti? ance and not even a second look. ap:pears· to hiive been·given to the manner of drafting these petitions or to the contents raised ther~in.

The cOurt · refrained from passing any order of Costs and, instead expressed disap°proval . of-~he. light hearted and indifferent manner in which these petitions were filed. [17 B-C] · election Petition l:io. 4 of 1982. I. The rights arising . out of electio. ns, inclllding the 'right to _contest or· challenge an election. are not common ·iaw· rights. They are creatures of the~ .. • statutes which create, confer or limit those rights. Therefcre, for deciding the question whether an election call be set as_ide on. any alleged ground, the courts have to consult the provisions-of law governing the particular election. They • qave to fUnctiDn_ within the framework of that law and canno~ t. ravel beyond it. Only those~ persOns on· whom the right of franchise is conferred by the statute Ca~ vote at the ~teCtion. [19 F-GJ • ' In ·the instant case, that right is conferred on every 'elector' as defined in section 2(d) cf the Act. Only those person who are qualified t.

o be elected to ihe particular office ca. n contest the election. That' right is regulated by section 5A Of the Act. The election can be calle. d into· question in the manner ·prescribed by the stature and not ·in any other manner. · Sectic·n 14(1) of the· • Act provides that no t'. lection shall ·be called iri question except by presenting: an el~tion petitio~ to the authority specified in sub-section (2) which: is the Supreme. Court. The grounds for setting aside the election. to th. e Office of thl-_ Presid6nt or the Vice-President and the ground on Which a candidate other than the returned candidate may be. dci:Iared to have . been f'fected are laid . down in sections 1S and 19 of the Act. The election can neither be questioned nor set aside on any othef grollnd. Therefore,. tbe challenge to the election • . of the r~turned candidate on the ground _pf his want of suitability :to . occupy the offi~ of the President cannot be entrrtaine~ a~d mU~t be. r:ejected. [20 i;~E] • .. K.

Venkateswdra Rao v. Bekkam Na~simha Reddy [1969] l SCR. 679 at 684 and Charan Lal Sahu v. NandkisRore Bhatt, [J974] 1 SCR 294 at 296 referred to. • 2. Suitability of a candidate is for the electorate to judge and not for the cOurt tO decide. The cou·rt cannot Substitute-its own assessment of the suitability -0f a candidate for the verdict returned by the electorate. _ The verdiCt of the· electorate is a verdict on the suitability· of the Candidate. 'Suitability' is a &uid concept of uncertaih import. The . b•l. lot-box is, or has to be assumed to be, its sole judge. [20 G-21 Al • • 3. It is not operi to a petitioner in an Election•Petition to plead in terms ofSynonyms. In Election Petitions pleadingS have to be precise, specific 8. nd unambiguous s. o as to pUt the respondent on notice. · The rule of pleadinas that facts constituting the cause of action must be 1pecifically pleaded i1 a1 fund•- 1\lC\\. tll. \l\ it i~ eleme11. t~ry. [23 Al • • . 4. :· _'. Co~Vance• 1naj. in OOrt.

ain ~ituC'tions amou1~t 'to 'consent'. DictioR nanes gi~e fconsf'nt' as One of the meanings ·of the word 'conriivancC·. BUt·it iS not . true to say. that '. connivance' invt1:riably and necessarily- ffieans. or a1nounts to 'consent', tha~ is to· say, irrespective Of t~ conteXt of the given situation. The two cannot, therefore, be equated. Consent implies that parties are ad idem. _ Connivance does not beceSsarily imply that ·t1arties ate_ of·. one mind. They . may or may not be, depending'\tpon the. facts of the sit. uation. [23- B-Cj . . . \ . 5. Precision~ i1~ pleadings particularl:Y. in Election Petitions is necessary. v The ht1. porta~Ce of a. specific pleading in election PetitiOn~ ·caJ1 be 3:PPrecia:ted • only if. it is rea. Jis~d that the absence of a specific. plea puts the. respondent at a· · great disadvantage. ' He m. us~ ~now what. case hC has to 'meet. He canpot be "t kept guessing . whether tμe petitioner means what he says.

The petitioner canno't be allowed_to keep his Options op~n until . the trial and adduce srich eviden~ as seems· cbnvei1ient and comes handy. It is therefore inlperffiissible· to substitute fl ·tJie wOrd 'c0nsent' for the word 'C_ · . . . · CiVJL APPELLATE JuRISDICTlON: Election Petition No. 2 of 1982 . . (Petition under Article 71 of ihe Constitution. ) AND B! ection . Petition No. '"3 of-1982. ·(Petition under Article 71 of the Constitution. ) •. WITH; ... Election Petitio~ No. 4 of )982. . '! '-. (Petition under Article 71 of the Constitution. ) Petitioner in person in ~lection Petition No. 2/82. - Hari Shanker Jain and K. K. Gupta for the Petitioner i. n Election -. Petition_ No. 3/82. · •• · Shujaatu//ah Khan. and K. K. Gupta for the Petitioner i. n Election • Petition No. 4/82 . \ • : O. P Sharma, R. C. Gubrele, K. R Gupta and R. C. Bhatia_ for the . • Respondents in Ele6tion Petition No. 2/82. . ' ' . ~ . , P. R. Mridul, A'1r. Sen. O. P. _ Sharma, R. c: Gubre/e, K,R Gupta·· ...

and R. C. Bhatia 'for the respondent in Election Petition No. 3/82. . .. A.. K. Sen, 1. $. Basu, O. P. Sharma, R. C. Gubrel'- K. R Gupta and· R.. C. ' Bhatia for the respondent in Eleftion Petition No. 4/82. . ... .. ,. 12 SUPREME COURT REPORT~ . [1984] 2 s. c:11.. . ' . A· :. K Para · · B. · ·. A. S. Pundir for the Jnter. venor.. '. • . ' : D. B. Vo/zra fot the Interveriors. ·. ' ,.. _ The. Judgment oft. he· Court was delivered by . ·,. . C:,HANDRACHUD, C. J. : These three Election petitions are filed under. section 14 of the Presidential and Vice·Presidential Electfons . Act, j 952 . to'(:hallenge the election of Respondent L Oiani Zail Singh,· as the President. of India. The election to tqe office of the President of India was held ·Ori J~lv 12, 1982. in all, 36 candidats had filed· . . ... " ~ '! :nomination papers· including Shri Charan Lal. Sahu who is tht; peti- D,·1 ·. ti01i. er in Petition No. 2 of 1982 anci Shri Nerri Chandra Jain who is .

~the pe\itioner in el~tion'Petition No. 3 of 1982. The Retu~ning officer accepted the nomination papers of two candidates only : Gaini Zail Singh and Sh~i H. R. Khanna~ a retired Judge ofthis Court. The result ofthe election was published iii the Extraordinary Gazette of India on July 15. 1982 declarinjl Giani Zail Singh as the successful candidate. . Ho t. ook oatli of offiee on July 25, 1982, · • .. . ' . We will first take ~P for conside~ation Election Petitions 2 and 3 of 1982 which. are filed respectively liy Shri Charan Lal Sahu and ~~ Shri Neni Chandra Jain both o(whi>m, incidentally, are Advocates. . . F Election Petitions Nos. 2 I duly . ' nominated as candidate al the ·election.

·· • The pet1troners, however, contend that eve·n if it is bdd that they were not duly nominated as candidates, their petitions cannot be dismissed on that ground since they •claim to have been duly nomi· nated', It is true that in the matter of claim to candidacy, a person who claims to have been duly nominated 1s on par with a person . who, in fact; was duly nominated. But. the claim to have been duly. nominated cannot be made by a person who_se ·nomination paper does not comply with the mandatory re. quirements of section ·ss· (I} (a) of the Act. Th. at is to say. a person whose nomination paper, admittedly, was not suoscrihed by the tequisite number of electors as proposers and seconders cannot claim that he was duly nominated: Such a clahn . can only be made by a peson who can show that his nomination paper 0 conformed to the provisions of section 58 and yet it was rejected, that is,. wrongly rejected 'by the Returning Officer. To illustrate, if . the ·.

E ,Returning Officer rejects a nomination paper on the ground that one of the ten subscribers WhO' had proposed the nomination "is not an elector, the petitioner can claim to have been duly nominated if he proves that the said proposer was in. fact an 'elector'.. Thus; . the·occasion for a person to make ·a claim that be was ·F duly nominated can ar. ise only if his nomination paper· complies with · the statutory req. uirments which govern the filling of nomination papers and ~ot otherwise. Th. e claim . that he was 'duly' nominated ·necssarily implies and involves the claim that his nomination paper conformed to the requirments of the statute. Therefore, a contestant wh~se. nomination paper is not subscribed by at, least ten electors as . ·G proposers and ten electors as seconders, as required by. section 58(1) (a) of the Act, cannot claim to have been duly nominated, any more than t'·· a contestant who. had not subscribed his assent to his own nomination can.

The claim of a contestant that he was duly nominated mus·t arise out of bis compliance with the provisions pf the Act. . It cannot arise out of the vblatiop of the Act. Otherwise, a person who had not filed • • 16 SUPRBMI! COURT RBPORTS · li984] 2 s. c. R. any nomination paper at all but who had on! / informed 'the ReturnYng · Officet orally thathe desired to. contest the. election could also contend that he '. 'claims to have been duly nominat~d . as a c leness has no substance . in it. The.. validity of that provision was 2 ·upheld by tliis Court in . Charan Lal Sahu v. Nee/am Sanjecva Reddy,C ) Besides, if the petitoners have· no locus to file the election petiti9ns, they cannot be heard on any of their contentions in these petitions. .. . Accordiiigiy, . ourfinding on the preliminary issue is against . the >f. . petitione:s... We. hold. that they have 'no focus· standi to file the "election .. . (I) AIR 1975 ·s. c 128$ ' ' - '. . I. ! . .. ti . ,,,i :t(a)·t~. 9.? ~J. ~I~~ .

,11;0 r ,, ' • . CHARAN LAL v. ZAIL SINGH (Chandrachud, C. J. ) 17 petit! Ons since th~y were neither duly nominated no~ co. n they claim to have been duly nominated as candidates at the presidential. ,ele9tion. In view of t~is finding, Election Petiiion Nos, 2 and 3 of 1982 are .. dismissed. It is rJ)grettable that election petitions challenging th•. electioa. te the high Office of the President of India should be filed in a fashion a cavalier as the one which charactei-iSes these two petitions. · The petitions . have an extempore appearance a~d n~t even a . second·look, -+' .. leave alone a second thought appears to have been given to' tho manner of ,drafting these petitions or to . the contenti~n~ raised therein. In order to discourage the filing: of such petitions, we would have been justifkd in passing a heavy order of costs again5t . the ·two petitioners. But that is like'ly to create a needless misconceptio.

n that - this Couri, which has been constituted by the Act as the exclusivt forum for deciding election peiiiions whereby a Presidential or Vice- Presidential election is challenged'. is loathe to enlertain such petitions. It is of the essence of the functioning of a democracy that election to public offices must be open to the scrutiny of an independent tribunal. A heavy order of costs in these two petitions, howsoever justified on their owq facts, should not result in nipping in the bud a well-founded claim on. a future occasion. Therefore, we refrain from passing any order of_costs and, instead, express our disapprovalof tho light-hearted and indifferent manner in which these two petitions aro drafted and filed. . Election Petition No. 4 of 1982 This Ebction Petition is filed by 27. Members of the Parliament .. f0 challenge the election of Giani Z1il Singh as the President of India.. The peritioners belong to four Opposition Parties : The Lok Dal; Th• ...

Democratic:Socialist Party of India, the Bharatiya Janata Party and the Jan:ita Party. , These parties had jointly sponsored the cand. idaturt of Shri H. R. ,Khanaa, a former Judge of thi~Court.. arising 0•1t ·of elections, including the right to contest or chal- , r Jenge all eletion, are not comn1on la\V rights. They are creatures of. the statutes which create, confer or limit those rights. Therefore, for deciding the question whether a·n electitm can be set aside on any alleged g1ound, the cornts have to consuli the provisions of l~w g'uverning the particular elcctlon. They have to function within the framewurk of that law and can00t travel beyond it. Only those persons on whom ·the ·right of franchise is conforred by the statute can vote. at the· election. In the instant ·case, that right is conferred on every :elector' as defined in section 2(d) of. the Act, which provides: " 'elector'. in relation to .

a presidential election, mean·s a · member of the dectorarc~llege referred to in article 54, and 20 SUPREMl COUllT RlPORT! i · (1984] 2 s:c. i.. in relation to a Vice-Presidential· election, means a m~mber of the elec\oral college referred to in article 66''. · Only those persons who are qualified· to he 'elected to the particular office can contest the election. In the instant case, thafright is regulated by section SA of the Act which provides : 'B "Any person may be rtomihated as a candidate for elec- . · ' _tion to the office of President or Vice-President if he is qualified to be by elected to that -office under the Constitu· ti. on". The election can he called into question in the m&nner prescribed by the stntute. ·and. not in an~ other manner. In ·the instant case, section 14(1) of the Act provides that no-election shall be·called in question except by presenting an election petition to the authority ·specified in sub-section (2).

By sub-section (2) of section 14, the Supreme Court is constituted the sole authority for trying an election . D ·petition. Finally, an election can be called. into question and set aside on those gro•mds only which are prescribed by the statute. Jn the instant case, the grounds for setting aside the election to the office of the President or the Vice President and the grounds on which a candidate other than the returned candidate may be declared to have been elected are laid down in sections 18 and 19 of the· Act. The ;. electi011 can neither be questioned nor set. aside on any other ground. · Therefore, the challenge to the election of the returned candidate on the ground of his want of suitability to occupy the office of tl:e President cannot be entertained and must be [19691 1 scR 679 at 684 (2) [1974] I SCR 294 at 296 CHARAN LAL v. ZAIL SINGH (Chandrachud, C. J. ) 2. 1 candidate. 'Suitability' is a fluid concept of uncertain import.

The ballot-box is, or has to be assumed to be, its sole judge. Wer~ the Cot;rt to exercise the power to set aside an election on the g"rou_nd that, in its opinion, the returned cai;didate is not a suitable person for the office to which he is elected, tho statute will. stand radically amended. so as to give to the Court a virtual right of veto on the question of suitability· of the rival candidates. ·And then, an U! 'successful candidate will challenge the election of the successful candidate on the, ground that he is more suitable than the latter.. That is an impossible task for the Courts to undertake and indeed, far · . beyond the limits of judicial r~view by the most liberal standard. Accordingly, the challenge. to the election of the returned candidate ori the ground that he is na. t suitable for holding the office of the President of India· fails and is rejected. Ou'r finding on the issue is in the negative. The .

other grounds on which the petitioners have challenged • the election of Respondent 1 are these ; (1) That Shri M. H. Beg, former Chief Justic;. e of the Supreme Court and now . Chairman of · the. Minorities Commission, was engaged by R,esponqent J and by the Prime Minister Smt. Indira Gandhi "for influencing the votes·of 'the Minority communities"; (2) that Rao Birendra Singh, a cabinet Mrnister of the Government of India, who is a "supporter and a ·'close associate" of Respondent· l, exercised ·undue influence over the voters by misusing the Government machinery in that, a statement issued by him asking the voters to vote for Responent J was published by the Press Information Bureau, Government of India; (3) that the Prime Minister participated in- the election .

campaign of Respo;1dent l and misused the Government machinery for that purpose; (4) that • the Prime Minister made a communal appeal to the Akali Dal that · its members should vote for Respondent 1; and (5) that Government helicopters and cars belonging to the Government were misused for the purpose of ·election of Respondent I. It is alleged by the· pcHtioners that these various acts were committed by the well-wishers . , and. supporters of Respondent ·1 with his connivance. It was contended by Shri Asoke Sen that,, even assuming that these allegations are true, they do not disclose any cause of action for setting aside the election of Respondent' I. In view, of these rival ·contentions, we framed the following issue for consideration : "Whether the avorment• in the"Election Petition, assum- ·' 22 . SUPREME COURT. REPORTS 1J984) 2 S. C. R. ing . them to be true and correct, disclose any cause of action • ,\... for setting aside the election of the returned candidate (Respondent.

I) on the ground stated in section 18(1) (a) of the Presidential and Vice-Presidential Elections Act, 1952? " Section 18(1) (a) of the. Act which we have already. set. out.. · ' provides that the Supreme Court shall declare the election of the r returned candidate to be void i\it is of opinion- · .. "that the offence . of bribery and undue influence . at the . election has been committed 'by the returned candidate or by any person with the consent of the. returned candidate. "- (emphasis supplied). We may keep. · aside the question of bribery since there is no allegation in that behalf. Nor is it alleged that the. offence of undue i. nfiuence was committed by the returned candidate himself. The allegation of the petitioners is that the offence of undue influence was committed by certain supporters and close associates of Respon- • dent 1 with·his connivance. It is patent that this allegation, even if it is tnre, is not enough to fulfil the requirements of section 18(1) (a).

What that section, to the extent relevant, requires is that the offence of urrdue influence must be committed by some other person with the . '. 'consent" of the returned candid. ate. There in no . lr plea whats~e. vcr in the petition that undue influe. nce was exercised by those other persons with the consent of Respondent 1. It is contended . by Shri Shujatullah . Khan who appears on·. behalf of tho petitioners, . that connivance and consent are one and . the same thing and that, there is no legal aistinction between ·the two concepts. In support of this contention, learned counsel relies upon the meaning of the. word. 'connivance'. as given in Webster;s Dictionary . (Third Edition, Volume I;]'. >. 481); Random House Dictionary (p. 311); Black's Law Dictionary (p'. 274); Words and ~hrases (Permarient Edition, Volume SA, p. 173); and·Corpus Juris ,, · Secundum (Volume ! 5A, p. 56;'). The reliance on these dictionaries and texts cannot carry the point at issue any further. The .

retevant question for consider. ation for the decision of the issue. is whether . there is any pie. acting in ,the petition to the effect that the offence of . y . undue iu! luence was committed with the consent of . the returned. candidate. Admittedly, there is n-0 pleadi11g of consent. It is then no answer . to say that the. petitioners have pleaded connivance and, . aecording to dictionaries, connivance means cons truc to say that 'Connivance' invariably andnCCCSiarily means or ·amounts to consent, ·that is to say, irrespective of the. context of the given· situation. The ~wo· can~ot.. the... ,forc, be' equated. ,Consent implies that parties . are ad' idem. Conni. vance does .. not necessarily imply iha_t parties are of. one mind. They may or may not be, depending upon th~ facts of the si,tuation. ,That'is why, in the ..

bsence · of a pleading that the offence of undue influence was committed ·with the consent of the ret~rned candidate, one of the main ingredients ;,f seetion 18(l}(a) remains un~atislled. . ' The importance of a specific pleadin~ in these matters can 9e . appreciated only if it is. realised that the absence of a specific-plea . puts the resilondent at-a great disavantage. He must know What caso Jo:e has to meet. . He cannot be kept guessing whether the petitioner meal what ·. he says, 'connivance' here, or whether the petitioner . has' usecl expression as meaning 'consenf. It is remarkable that, in their petition, the petitioners hav. e furni>hed no particulars of the alleged consent, if what is meant by the use of the word conni~anoe i• ~on sent. They ca~not be allowed to keep their options open until ih• trial and adduce suchevidence of consent ·as seems conveni~nt and • ' comes handy. That is the · iinportance of· precision in"·p1Jadi~gi, particularly in election petitions. Accord.

ingly, it is impermissible te substitute the word 'consent' for the word 'connivance' which occurs in the pleadings of the petitioners. The legisl. ati~e hist~ry ofthe. statute lends supporrto our view that for the purposes of section 18(1) (a), connivance is not the samo thing as consent. Origi\lally, when th~ Act was passed in 1952, section 18(1} (a) provided that the Supreme Court shall declare the election of the retur. ned candidate void. if it is of opinion that the offence of bribery or undue influen. c:e has bee. n committed by the returned candi· date or by any person 'with the connivance' of theretu med candidate. This sub-section was amended by section 7 of the Presidential and Vi;:-PrniJi,llial Electi0ns (Amindnient) Act, 5 of 1914, which came ' ' into force on March 23, 1974. The word 'connivance' was substituted by the word 'consent' by the Amendment Act. If connivance carried the same meaning as consent and if one was the same as the other. .

Parliament would no\ have taken'the deliberate step of deleting tho word_ •connivance' and substituting it by the word -'consent'. The amendment made by· the Amendment Act of 1947 showi that connivance and consent connote distinct concepts for the purpose. 'of section 18(1) (a) of the Act, , . . • • • Since, admittedly, there is no pleading in the Election Petition that the offence of undue influence was committed with the consent of the returned candidate, ,the petition must be held to disclose no cause of action for setting aside the election of the returned . candidate · under section 18(1) (a) of the·Act. • . . . Apart from this, Shti Asoke Sen is right that granting everythin: in favour of the petitioners and assuming that all that they have alleged is true and correct, no case is made out for setting aside the election D, of the returned candidate under section 18(1) (a) of the Act. We · will first take up the allegation of the·petitioners that Shri M. H.

Beg, · Chairman ·of the Minorities Commission,. canvassed support for· ·Respondent I. The que_stion which we' have to consider is whether, _in doing ·so, Shri Beg is guilty of the· offence of undu_e influenco. Section 18(2) of the Act provides that' for purposes of section 18, the offences of bribery and updue influence at an election have the same meaning as in Chapter IXA of the Penal Code. Tha. t Chapter ·which was introduced into the Pen~! Code by Act 39· of 1920, deals ·~ ~ith "Offences relating to Elections". Sections 17JB·a~d 17JC of the Penal Code define the offences of bribet y and undue influence • ·- . respective-I¥, Section 171C reads thus ''Undue· f,"1,f! uence fit ~lectlons i 17iC. (I) Whoever v. nuntarily interferes. or attempts to inteifere'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 (I), whoever- · · '.

( · (a) threatens any candidatr or voter, or. any person in whom a candidate or voter is_ intcre•ted, witlt injury of any kind, or .. ,· • CHARAN LAL . v. ZAIL SINGH'(Chandrachud, c. J. ) 25 (b) induces or attempts to i~duce· a candidate or voter to 'believe that he or any person in whom he is interested will become 9r will be rendered an object of Divine displeasure or of 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 in-. ' terit• to interfere with an electo. ral right, shall not be deemed to be interference within the meaning of this section. " .... ' ~ . '· The gravamen of this secti0n is that there must. be interference o_r attempted interference with the. 'free, exercise' of any electoral right.

'Electoral right' is defined by section 17lA(b) to mean the ·right of a person to stand, ~r not to stand as, or to withdraw from being, a candidate or to vote 'refrain· frolh voting at an election. In so far as is relevant for our purpose; the ele~tion petition must show that Shri Beg interfered with the free exercise -of tl:e voters' right to vote ~t the Presidential election. The petition does not allege or show that Shri Beg i'nterfered in any manner 'with the free . _j exercise of 'the right of the voters t9 vote according to their choice or conscience. The petition alleges that Shri Beg commented severely upon the suitability of the rival candidate Shri H. R. Khanna . by pointing out the so-called infirmities in his judgment in,the Fundamental Rights case. On the fopposition that. Judges c~nstitute brotherhood and a. re bound by ties of institutional ioy,lty, one may not approve of the tone and temper of the . personal attack made by Shri Beg on Shri H. R. Khanna.

But that is beside the point. We · ,, are neither concerned with the propriety of the statement made by Shri Beg nor with the question as to who, out of the two candidates, . · is more suitable to be the President of India. The point'of the matter is that by conveying to the voters that Respondent I was much safer candidate than Shri Khanna and that Shri Khanna would not be a suitable candidate to hold the office of the President ·of (; India by'reason of a judgment of his, Shri Beg could not be said to have interfered with the free exercise of the right of the voters to vote ai the election. If. the mere act of canvassing in favour of one candi- . date as against another were to amount tq undue influence, the very process of a democratic, election shall have been· stifled because, the riptto caRvass support for a ca':1didate is as much impoltant as the • right to vote for a candidate of one:s choi-:;e. Therefore, inor 3j. (2) [1971] 2 S. C. R: 197, 225, 320, 321. CHARAN LAL v.

ZAIL SINGH (Chandrachud, C. i. ) ·21 threat of ft! ar of so1ne adverse consec1uence, Oi if he is indu,ced to believe that he will become an objcct·of divine displeasure or spi. fitual censure if he casts or· olitical battles. That leaves for consideration one other contention. Article 58(1) of the Constitution provides that no person. shall be 'eligible for ' ' election as President unless he (a) is ·a. citizen of India, (b) ha• completed the age of thiry-five years, and (c)' is qualified for election as a member of the House of the People. Article 84(a) provides that a person shall not be qualifie<l to be chosen to fill· . a seat in Parliment unless, inter ~Zia he makes and subscribes an oath ,/ or 'af! jrmation set out for the purpose in the Third Schedule: The argument of the petitioner. ~ is that a candidate contesting a Presidential election must t1ke the oath as prescribed by Article 84(a) and since Respondent 1 had not taken such oath, his election is unconstitutional.

This argument is. untenable. · Article 58 which - prescribes "Qualifications for elections as President':, provides three· conditions of eligibility for contesting the Presidential election. One "or' these conditions is that the, cadidate must be qualified for . ' election as a· member of the House of the People. ·Article 84 speab of "qualilicatioqs for membership of Parliament". No p~rson can fiU ·a seat in the Parliament unless, inter a/;a, he subscribes, to the oath qr affirmation according to the form set oat in the Third Schedule. The form prescribed by the Third Schedule shows that it is restricted to candidates who desire to contest the election to the Parliament. In the. very nature of things, a candidate who want~ to contest the election for the office of the President cannot take the oath in any of the· forms prescribed· by. the Third Schedule. That Schedule 'does not· prescribe· any form of oath for a person who desires to contest a Presidential election. l' ....

In the result, Election. Petition No. 4 of J982 is also dismissed. There will be no order as to costs. ' ') . ,. , • N. V. K. · Petitions dismissed. '