Gadakhyashwant Rao Kankarrao Vs. Balasaheb Vikhe Patil [1993] INSC 497 (19 November 1993)
VERMA, JAGDISH SARAN (J) VERMA, JAGDISH SARAN (J) SINGH N.P. (J) VENKATACHALA N. (J) CITATION: 1994 AIR 678 1994 SCC (1) 682 JT 1993 (6) 345 1993 SCALE (4)424
ACT:
HEADNOTE:
The Judgment of the Court was delivered by VERMA, J.- These appeals under Section 116-A of the Representation of the People Act, 1951 (hereinafter referred to as "the R.P. Act") are against the judgment dated March 30, 1993 in Election Petition No. 2 of 1991 (E. V. alias Balasaheb Vikhe Patil v. Gadakh Yashwantrao Kankarrao1) passed by A.A. Halbe, J. of the Bombay High Court at the Aurangabad Bench. By the impugned judgment, the election of Gadakh Yashwantrao Kankarrao as a member of the Lok Sabha from 39 Ahmednagar Parliamentary Constituency held in June 1991 has been set aside for commission of the corrupt practice under Section 123(4) of the R.P. Act; and E.V.
alias Balasaheb Vikhe Patil has been declared elected.
Civil Appeal No. 2115 of 1993 is by Gadakh Yaswantrao Kankarrao (Gadakh) against declaration of his election to be void and the further declaration of E.V. alias Balasaheb Vikhe Patil (Vikhe Patil) to have been duly elected. Civil Appeal No. 2116 of 1993 is by Deshmukh Bhagwan Rangnath (Respondent 5 in the election petition) against declaration of Vikhe Patil to have been duly elected. Similarly Civil Appeal No. 2444 of 1993 is by Najan Rambhau Maruti (Respondent 6 in the election petition) against declaration of Vikhe Patil to have been duly elected. Civil Appeal No.
1758 of 1993 is by Sharadchandra Govindrao Pawar (Sharad Pawar) to whom a notice under Section 99 of the R.P. Act was issued, against naming him for commission of the corrupt practice under Section 123(4) of the R.P. Act along with the returned candidate Gadakh.
2. The material facts are now stated: Programme for election of a member of the Lok Sabha from 39 Ahmednagar Parliamentary Constituency known locally as Ahmednagar South Constituency was as under:
"1. Issuance of Nomination Papers From April 19, 1991 to April 26, 1991
2. Last Date of Acceptance of Nomination April 26, 1991 Papers
3. Scrutiny and Publication of list of April 27, 1991 candidates
4. Withdrawal and Publication of final list April 29, 1991 of candidates
5. Allotment of symbols April 29, 1991 after 3.00 p.m.
1 Election Petition No. 2 of 1991, decided on March 30, 1993 689
6. Duration of Propaganda April 30, 1991 to May 21, 1991
7. Date of polling May 23, 1991
8. Counting of votes and declaration of May 27, 1991 results" However, due to the assassination of Shri Rajiv Gandhi, former Prime Minister of India on May 21, 1991, the remaining election programme was modified by fixing June 12, 1991 as the date of polling in that constituency and June 16, 1991 for the counting of votes and declaration of result. For the election from that constituency, the election petitioner Vikhe Patil, the returned candidate Gadakh, Respondent 1 and Respondents 2 to 10 in the election petition, were candidates. The polling took place on June 12, 1991 and the result was declared on June 16, 1991 wherein Gadakh was declared elected having secured 2,79,520 votes against his nearest rival Vikhe Patil who secured 2,67,883 votes.
3. Vikhe Patil then filed an election petition (E.P. No. 2 of 1991) at the Aurangabad Bench of the Bombay High Court praying that the election of Gadakh be declared as void and the election petitioner Vikhe Patil be declared to have been duly elected from that constituency. Challenge to the validity of the election of Gadakh was made by Vikhe Patil on the ground that Gadakh had committed the corrupt practice under sub-section (4) of Section 123 of the R.P. Act. This ground was based on the allegation that Gadakh had made certain false statements in his speeches relating to the personal character and conduct of Vikhe Patil attributing the use of corrupt methods by him, with a view to prejudice the prospects of Vikhe Patil's election, in meetings held by him at Sonai on April 30, 1991, Ahmednagar on May 2, 1991, Newasa on May 3, 1991 and in an interview given to a journalist on May 10, 1991 which was published in the daily newspaper Maharashtra Times on May 13, 1991. It was also alleged by Vikhe Patil that in the public meetings held at Newasa on May 3, 1991 and at Srigonda on May 11, 1991, Sharad Pawar, the then Chief Minister of Maharashtra had made similar statements relating to the personal character of Vikhe Patil, in the presence of and along with Gadakh.
It was alleged by Vikhe Patil that these statements relating to the personal character of Vikhe Patil made by Gadakh and Sharad Pawar amounted to corrupt practice under Section 123(4) of the R.P. Act on account of which Gadakh's election was void and Sharad Pawar was Hable to be named in accordance with Section 99 of the R.P. Act. After the evidence was recorded at the trial and Gadakh had also been examined on commission on account of his illness, the High Court issued a notice under Section 99 of the R.P. Act to Sharad Pawar to show cause why he should not be so named.
4. Sharad Pawar challenged the issuance of this notice under Section 99 of the R.P. Act to him by a special leave petition filed in this Court, but the same was dismissed requiring Sharad Pawar to raise his objections to the notice in the first instance at the trial of the election petition in the High 690 Court itself. Sharad Pawar then raised his objections before the High Court but chose not to adduce any evidence or to apply for recall of any witness already examined for further cross-examination. Sharad Pawar denied the commission of any such corrupt practice as did Gadakh at the trial of the election petition.
5. The High Court at the end of the trial allowed the election petition and declared the election of Gadakh to be void making a further declaration that Vikhe Patil was duly elected. The High Court also named Sharad Pawar for commission of the corrupt practice under Section 123(4) of the Act along with the returned candidate Gadakh. The conclusions of the High Court on the basis of which these reliefs have been granted are summarised in paragraphs 223 and 224 of the impugned judgment, which are as under:
"From the discussion in the foregoing paragraphs, it has to be concluded that the Respondent I and Sharad Pawar did make supplementary statements of each other. Those statements can be enumerated as below:
(1) Petitioner was to spend Rs 3 crores for his election;
(2) Petitioner had paid Rs 50 lakhs to Janata Dal;
(3) Petitioner had paid Rs 20 lakhs to Janata Dal candidate for withdrawing from Nagar Constituency and to contest from Beed Constituency;
(4) Petitioner was to take out rally of 5000 cycles and distribute the cycles amongst the participants;
(5) Petitioner was to spend for repairs of Chawadies and had sent Rs 5000 for repair of Chawadi at Ganganagar, Tq. Newasa;
(6) Petitioner was to distribute sarees, dhoties, liquor amongst the workers obviously with a view to attract them;
(7) Voters must accept them and vote for Congress.
These are the statements made by the Respondent I and Sharad Pawar in various meetings. The foregoing discussion has clearly indicated as to what was spoken by either of them at different meetings. That portion would be again reconsidered at the end but suffice it to say that they would certainly touch upon the personal character and conduct of the petitioner."
6. It is these conclusions and reliefs granted on this basis which are challenged by the returned candidate Gadakh and the notice Sharad Pawar, while Respondent 5 Deshmukh Bhagwan Rangnath and Respondent 6 Najan Rambhau Maruti have challenged merely the further declaration of Vikhe Patil to have been duly elected, in their appeals.
7. At this stage, a gist of the alleged false statements relating to the personal character of Vikhe Patil attributed to Gadakh and Sharad Paw,.( may be mentioned while the details thereof would be stated later at the time of considering each of them separately. It has been alleged by Vikhe Patil that Gadakh attributed to him the resort to corrupt methods for winning the 691 election in his statements by stating that Vikhe Patil had a huge election budget of Rs 3 crores; that Vikhe Patil had paid Rs 50 lakhs to the election fund of Janata Dal; that Rs 20 lakhs were paid by him to the Janata Dal candidate B.G.
Kolse Patil to shift to another constituency; that he was to distribute 5000 bicycles to the participants in a bicycle rally to be taken out for him; that he had offered to the workers in the election campaign Rs 25,000 at the village level and Rs 50,000 at the taluka level; that he was to give money for repairs of chawadies and temples in the constituency; and he was to distribute sarees, dhoties, liquor and cash to the voters for purchasing their votes.
It was also alleged that Gadakh exhorted the voters in the constituency to accept these things from Vikhe Patil but to vote for Gadakh. Against Sharad Pawar, it was alleged that in the public meetings he addressed at Newasa and Srigonda, he made similar statements in the presence of Gadakh, except the statement attributed to Gadakh alone of payment by Vikhe Patil to the Janata Dal election fund and the Janata Dal candidate. It may be noticed at this stage that combined findings against Gadakh and Sharad Pawar have been recorded by the High Court in paragraphs 223 and 224 of the judgment in respect of all the alleged statements including those relating to payments to the Janata Dal and the Janata Dal candidate even though there is no pleading or proof of such statements being made by Sharad Pawar. The application made by the returned candidate Gadakh for recrimination alleging that the election of Vikhe Patil would have been void if he had been the returned candidate, was also dismissed by the High Court. Civil Appeal No. 2445 of 1993 as well as Special Leave Petition (Civil) No. 9210 of 1993 filed by Gadakh against dismissal of his application for recrimination have already been dismissed by us as not pressed.
8. The operative order made by the High Court is as under:
"(i) The Election Petition is allowed.
(ii) The election of the Respondent I Gadakh Yashwantrao Kankarrao from 39 Ahmednagar Parliamentary Constituency is hereby declared as null and void as the respondent Gadakh Yashwantrao Kankarrao is proved to have committed corrupt practices under Section 123(4) of the Representation of People Act.
(iii) The notice against Sharadchandra Govindrao Pawar is made absolute under Section 99 of the Representation of People Act and Sharadchandra Govindrao Pawar is named as a person who has been proved to be guilty of corrupt practices under Section 123(4) of the Representation of People Act. The Respondent I shall pay the costs of Rs 30,000 to the petitioner and likewise Respondent 6 shall pay the costs of Rs 5000 to the petitioner.
(iv) Registrar to take action under Section 103 of the Representation of People Act and forward the copy of the notice under Section 99 of the Representation of People Act and the judgment and order in this Election Petition to the Election Commissioner and also to the 692 Speaker or the Chairman of the House of Parliament or the State Legislature, as may be found necessary.
(v) The petitioner E.V. @ Balasaheb Vikhe Patil is declared as a candidate duly elected from the above parliamentary constituency.
(vi) Petitioner be refunded his security deposit." 9. In these matters, Shri Ashok Desai appeared for Gadakh;
Shri K. Parasaran for Sharad Pawar; Shri V.N. Ghanpule for Deshmukh Bhagwan Rangnath (Respondent 5 in the election petition); and Shri Ram Jethmalani for Najan Rambhau Maruti (Respondent 6 in the election petition). In substance, the contention of Shri Ashok Desai was that Gadakh did not make any of the statements attributed to him and at any rate none of those statements amounts to the corrupt practice under Section 123(4) of the R.P. Act. Shri K. Parasaran contended that the statements attributed to Sharad Pawar, which do not include the statement of payment of Rs 50 lakhs to the election fund of Janata Dal and the payment of Rs 20 lakhs to the Janata Dal candidate B.G. Kolse Patil for shifting to another constituency, do not satisfy the requirements of Section 123(4) and, therefore, do not amount to the corrupt practice thereunder. Shri Desai further contended that apart from there being no ground to declare the election of Gadakh to be void, no ground had been made out to declare Vikhe Patil to have been duly elected. Shri Ghanpule appearing for Deshmukh Bhagwan Rangnath adopted the arguments of Shri Ashok Desai to contend that Vikhe Patil could not be declared elected. Shri Jethmalani appearing for Najan Rambhau Maruti, apart from challenging the declaration of Vikhe Patil to have been duly elected, supported the submissions of Shri Ashok Desai and Shri Parasaran to contend that no corrupt practice under Section 123(4) was committed either by Gadakh or Sharad Pawar.
10. The statements attributed to Gadakh and Sharad Pawar as constituting the corrupt practice under Section 123(4) of the R.P. Act are alleged in the election petition to have been made in four meetings and one interview to a journalist given by Gadakh. Before giving the particulars of these allegations, the particulars of these meetings and interview may be given. It may be mentioned that Gadakh was the candidate of the Congress (1) Party at the election and Sharad Pawar belonging to the same party was the Chief Minister of Maharashtra at that time. The first meeting was held on April 30, 1991 at Sonai at which Gadakh had addressed the Congress Party workers. The second meeting of the District Congress Committee was addressed by Gadakh at Ahmednagar on May 2, 1991. The third was a public meeting at Newasa on May 3, 1991 addressed by Gadakh as well as Sharad Pawar. The fourth was also a public meeting at Srigonda on May 11, 1991 which was addressed by Sharad Pawar after he had been introduced and welcomed by Gadakh. The speeches by Gadakh and Sharad Pawar at these meetings were also published in the newspapers. Apart from these meetings, an interview was given by Gadakh on May 10, 1991 to a journalist 693 Girish Kulkami and that interview was published in the Maharashtra Times of May 13, 1991.
11. The averments in the election petition relating to the statements attributed to Gadakh and Pawar alleged to constitute the corrupt practice under Section 123(4) are mixed up but the relevant portions in the election petition are as under:
"On April 30, 1991, the first respondent had addressed a meeting at Village Sonai....
20 lakhs of rupees for the candidate who was selected by Janata Dal Party for the Ahmednagar constituency to contest the election from Beed constituency. Respondent 1 further alleged that the petitioner was going to spend Rs 3 crores for petitioner's election. Respondent I also alleged that petitioner has declared rate of Rs 25,000 for defecting worker of village level and Rs 50,000 for worker of Tahsil.... The petitioner states that the statements made by the first respondent that petitioner paid Rs 20 lakhs to the candidate of Janata Dal to withdraw from Ahmednagar Parliamentary Constituency are false is known to first respondent and such a statement is relating to personal character and conduct of the petitioner the statement is false and also related to the candidate. This statement was made by the first respondent believing it to be false. The said statement was made to prejudice prospects of the petitioner in the election. The statement of first respondent that the petitioner had paid Rs 50 lakhs to the Janata Dal Party is also false and this statement of the first respondent that petitioner has declared rate of Rs 25,000 per defection worker of village level and Rs 50,000 per worker of tahsil level is equally false. The first respondent knows and believes that it was false statement. The petitioner was indulging in an act of bribery for inducing Janata Dal candidate to withdraw from election. This statement relates to the personal character of petitioner....
statement in the meeting dated May 2, 1991, that in order to take the support of Janata Dal, the petitioner had paid Rs 50 lakhs to the election fund of (Janata Dal)....
(Para 10) The petitioner states that in the meeting addressed by the first respondent in the office of the District Congress Committee, Ahmednagar, on May 2, 199 1, as stated in para No. 10, and further the first respondent made a statement that a sum of Rs 5000 had been sent on behalf of petitioner for constructing Chawadi at Ganganagar area of Newasa Tahsil.
The Respondent I further stated that the petitioner was going to have bicycle rally of 5000 strong, and those bicycles would be given permanently to the participants in the said rally.... The petitioner states that no bicycle rally was held. The petitioner had not purchased any bicycle nor handed over any bicycle to anybody. The statement 694 made by the first respondent was false. The statement indicates that the petitioner was going to spend large sum of money to bribe voters, and even distribute 5000 bicycles....
(Para 11) The petitioner states that an election meeting was held at Newasa Bajartal on May 3, 1991, at 10.30 a.m. for the inauguration of propaganda.
The said meeting was addressed among others by the first respondent and the then Chief Minister of Maharashtra Shri Sharad Pawar. In the said meeting, the first respondent repeated that 5000 bicycles ... distributed, money is also being sent for repairing of Chawadi, Temples and cash was being distributed on behalf of the petitioner. Shri Sharad Pawar made a reference to this statement in the presence of the first respondent and Shri Sharad Pawar also made statement that Vikhe is under false impression that the poor men from famine affected area of South Nagar District can be purchased. Poor persons do not go here or there for money.
Don't take test of self respect of those (poor men). Institutions have been erected by taking advantage of party. Voter can't be purchased by that money. Shri Pawar advised the voters that if the wealth is being distributed take the wealth but vote for Congress. Statements were repeated to the effect that the petitioner was distributing bicycles and pairs of dhoties, and sarees, among voters in the constituency....
The petitioner states that these statements were false. The first respondent and Shri Sharad Pawar were knowing that these statements were false. Shri Sharad Pawar knew well that these statements reflected on the personal character of the petitioner. The petitioner was being painted by the first respondent and Shri Sharad Pawar, that the petitioner would do anything to get elected by use of his money.
(Para 12) The petitioner states that the first respondent gave an interview to Shri Girish Kulkarni representative of Maharashtra Times.
The said interview has been published in the Maharashtra Times dated May 13, 1991. ... In the said interview it was put up to first respondent that first respondent had been accusing the petitioner of indulging in corrupt practices on what basis such accusations were being made. First respondent replied stating that according to his own information the petitioner had paid Rs 50 lakhs to the election fund of Janata Dal for getting its support and Rs 20 lakhs to Shri B.G. Kolse Patil to make him not to contest the election from 39, Ahmednagar Parliamentary Constituency but to contest from Beed Constituency. First respondent had further stated that the petitioner had collected Rs 3 crores from various places to fight out this election as it is a fight for political existence of Vikhe Patil. It was further stated that he would be distributing cycles, liquor bottles, dhoties, sarees and cash amount among the workers then only he will be elected and arrangements have been made. It was further stated by Respondent I that the petitioner had been trying to win over the political workers by financial inducements....
The petitioner states that the above statement is false. The petitioner had 695 not paid Rs 50 lakhs nor any amount to Janata Dal Election Fund, nor paid Rs 20 lakhs to Shri B.G. Kolse Patil. Petitioner had not distributed bicycles, liquor bottles, dhoties, sarees, cash amounts among the voters.
Petitioner had not attempted to induce the workers of other party with financial support.
The first respondent knew that the above statement was false. The first respondent believed it to be false.... (Para 13) The petitioner states that the first respondent was also present in the election meeting on May 11, 1991, at Srigonda at 8.30 p.m. in Ahmednagar Constituency. The said meeting was addressed by the then Chief Minister Shri Sharad Pawar.... The petitioner states that the then Chief Minister Shri Sharad Pawar making the reference to above fact relating to petitioner, made the following statements. 'Who is contesting this election against us. On one side there is Rajiv Gandhi and this his candidate is trying to save the country. On the other side are the ranged people trying to secure votes in the name of religion and some other candidates and on the third side there is someone who went in adoption somewhere because it was not possible for him to wait when the party told him to wait for some time. And the third candidate who is contesting the election with their support had left his party and came here thinking that this is a soft (electorate). I am not worried about the Bhartiya Janata Party candidate in this constituency because he is going to lose. He too is aware of this. The question is different while what to do about this adoptive candidate who was raised by the Congress made a Member of Parliament five times, and office bearer of the Zilla Parishad. On one occasion when he was asked to wait a little, he grew impatient and began searching. He filled up (nomination) forms in Kopergaon and in Nagar. He adopted a stand of interest parties while to rebel in South constituency. But while performing that role he saw that he could not get an opportunity in the North. So the idea entered his mind that this South constituency being a famine prone region and the people there being poor he could pocket them. So he started activating in this part with a view to take over Maharashtra from here and win the election by the efforts of interested parties by playing game of purchasing your self respect. We must face it and defeat such activity. That is the task to be done in this election. At some time or other you will have to tell (them) that money alone cannot be an important motivation in this election. What is needed is ideology, policy, programme and morality.
It is wrong to give up morality, when ones wish is not fulfilled to leave the party programme and colleagues when a favourable decision is not taken and to join hand with other parties, once the "kum kum" (sacred red powder indicating matrimony) is applied, its sanctity must be maintained. But we did not know, that the kum kum was being applied in the name of one person and the eyes were looking at somebody else.... Then the possibility cannot be ruled out that attention will be drawn to all such questions; like what benefit we will get, which leaders are coming to South (constituency), will the village Chawadi be built, will the temple 696 be renovated, will the motorbike be available for riding, will bicycles at least be available for riding. It is not in your and my interest to accept the same. It will not be hove our self respect, but it must be accepted. I say that the reason for this (acceptance) is that whatever comes will be coming out of the resources of society. If the process of distribution has begun, it is very good in the interest of establishing socialism in this way. Take the same for free and use it against them. If we can do this sincerely, then I am sure that all these people shall realize that the people of South (constituency), are poor but their attitude is different....' The petitioner states that in the speech, Shri Pawar has not taken the name of petitioner, but has made references to the petitioner stating his political career and naming the petitioner as third candidate going in adoption....
The petitioner states that the statement made by Shri Sharad Pawar stated above were innuendos. The petitioner states that the statement above-quoted was false. The said statement was made in the presence of first respondent. The first respondent never objected to these statements.... The petitioner stated the first respondent and Shri Sharad Pawar believed these statements to be false. The petitioner states that the said false statements made by Shri Sharad Pawar with the calculation to prejudice petitioner's prospects of election....
(Para 16) The petitioner submits that the statements made by the first respondent himself and statements made by Shri Sharad Pawar in the presence of the first respondent amounts to corrupt practice under Section 123(4) of the Representation of People Act, 1951. These statements are even published in the widely circulated newspapers which are produced as Exhibits A to K. The statements amounted to an allegation that the petitioner was ready to buy the voters by offering bribes, to them.
The petitioner states that bribing itself is a corrupt practice and if it is said against a candidate that he practices the corrupt practice of buying the votes by means of bribery, it clearly and unequivocally constitutes an attack on the private character. The petitioner states that the statements of the first respondent and Shri Sharad Pawar as reported above were totally false. He believed that the statements were false and the statements were made calculated to prejudice the election prospects of the petitioner." (Para 17)
12. Recording of the evidence at the trial of the election petition was concluded on September 4, 1992 when the statement of Gadakh was recorded on commission. The High Court made an order on September 18, 1992 directing issuance of a notice to Sharad Pawar under Section 99 of the R.P. Act pursuant to which the notice was actually issued on October 3, 1992 together with the annexures as directed in the order itself. This notice was served on Sharad Pawar on October 12, 1992. As earlier stated, Sharad Pawar preferred a special leave petition in this Court against issuance of the notice and that special leave petition was dismissed requiring Sharad Pawar 697 to raise all his objections to the notice in the first instance before the High Court leaving those questions open for consideration after the final decision of the High Court, if necessary. In view of the High Court's order naming Sharad Pawar under Section 99 of the R.P. Act, the question now arises for consideration of his pleas. In the notice issued to Sharad Pawar under Section 99, the statements attributed to him in the meeting at Newasa on May 3, 1991 and at Srigonda on May 11, 1991 were quoted. At this stage, it is necessary to quote only those portions from the extracts given in the notice which have been relied on by Shri P.P. Rao on behalf of Vikhe Patil to support the allegation of corrupt practice against Sharad Pawar. The relevant portions are as under:
At Newasa on May 3, 1991:
"Filed the nomination in South instead of North. These people guessed that it is a poor region. Scarcity area, suffers from water problems. People are engaged on Employment Guarantee Schemes. The people are having problems always. A good circumstance to win over easily. But they do not know what is underneath. A black granite of Sahyadri is there. Any hammering would be not without danger. It would hurt the head.... that Shri Balasaheb has taken a stand to test the self respect of the common man. He should be warned in clear terms that you have grown big because of Congress. Congress makes you known to everybody. Your institutions have grown because of the support coming from the Congress Governments at the State and the Centre. Today you left Congress. Left your family name. Parental name you have cast off, and I want that, you will now realise your true place and nature. Possessed with the illusion that you will be able to purchase the poor man of the South with the help of the resources at your disposal. You have come here every person of this part is a man possessing self respect. He would rather remain without food and be in a peril but he would never sell his vote for anybody's money.
Balasaheb would come to reallse after the election of 23rd at the time of counting of votes scheduled on 26th.... They will distribute bicycles, distribute dhotis and sarees. He told you to accept them. I do not have any objection....
Balasaheb has become one of them. And in celebration of that occasion, if the wealth is being distributed in this constituency, there should be no hesitation in getting benefited.
Complete the renovations, if a bicycle is coming, let it be accepted. The symbol should be always in our hands. We should not worry ourselves about everything. May be there should be generous attitude behind the distributor of wealth in the shape of decentralisation. Let us welcome it. Let them do at the place and so far diverting the votes on the strength of money, let it be clear to whole of Maharashtra that voters cannot be bought....
Efforts are being made, to corrupt the people, attempts being made to put on the pressure.
There will be an attempt at distribution and notwithstanding anything done as above....
698 And side by side, in this district, here is a fight between morality and honesty from one side and money resources and a tendency guided by ego to the other side. I am sure that in this fight, the morality and honesty would triumph. Though to that side, we see a mountain of wealth, but we also see that there is an infinite sea of common poor public.
They are backing Yashwantrao and Shankarrao.
With the help of this common man's support, the voters of this constituency of the district have become able to belittle and destroy this mountain of wealth." At Srigonda on May 11, 1991:
"So the idea entered his mind that this South constituency being a famine prone region and the people there being poor he could pocket them. So he started activities in these parts with a view to take over Maharashtra from here and win the election by efforts of interested parties by playing their game of purchasing your self respect....
At some time or other you will have to tell (them) that money alone cannot be an important motivation in this election. What is needed is ideology, policy, programme and morality.
It is wrong to give up morality when one's wish is not fulfilled, to leave the party, programme and colleagues, when favourable decision is not taken and to join hands with other parties. Once the 'kum kum' (sacred red power indicating matrimony) is applied its sanctity must be maintained. But we did not know that the 'kum kum' was being applied in the name of one person and the eyes were looking at somebody else....
Then the possibility cannot be ruled out that attention will be drawn to all such questions like 'What benefit we will get, which leaders are coming to the South (constituency), will the village Chawadi be built, will the temple be renovated, will motorbikes be available for riding, will bicycles at least be available for riding?' It is not your and my interest to accept the same. It will not behove our self respect, but it must be accepted. I say that the reason for this (acceptance) is that whatever comes will be coming out of the resources of society. If the process of distribution of social wealth has begun, it is very good in the interest of establishing socialism in this way. Take the same for free and use it against them....
A decision is to be taken whether one should act on principle or disloyalty whether one is to act according to morality or immorality according to humanity or in the arrogance of money and power."
13. The submission of Shri Ashok Desai was that the making of these statements or at least the disparaging part thereof by Gadakh is not proved by any acceptable evidence and at any rate all the requirements of Section 123(4) are not proved to hold that the corrupt practice was committed by Gadakh. Shri Parasaran contended that the statements attributed to Sharad Pawar have not been duly proved and, therefore, the question of any rebuttal by Sharad Pawar does not arise; and even if the alleged statements are proved to have been made by Sharad Pawar, all the requirements of Section 699 123(4) have not been made out to justify naming him under Section 99 of the Act. Shri Ram Jethmalani supported the submissions of Shri Ashok Desai and Shri Parasaran. It was submitted by these learned counsel that the charge of commission of a corrupt practice being of a quasi-criminal nature, the standard of proof applicable is of a criminal charge and not merely that of preponderance of probabilities of a civil case. It was further submitted that the statements which were made by Gadakh and Sharad Pawar were only to caution the electorate against possible misuse of money power and to exhort them not to succumb to any such pressure or temptation. They submitted that this was done on account of the reasonable apprehension arising from the rumours afloat in the area of the likelihood of such tactics being adopted by Vikhe Patil who was a person of considerable financial means. They submitted that such exhortation with a view to educate the electorate cautioning them against possible misuse of money and adoption of unfair tactics does not amount to the corrupt practice under Section 123(4) of the R.P. Act. BACKGROUND OF POLITICAL CLIMATE
14. Before adverting to the particular statements alleged to have been made by Gadakh and Sharad Pawar which are alleged to constitute the corrupt practice under Section 123(4), it would be appropriate to deal with one submission made by Shri Ashok Desai and followed up by Shri Ram Jethmalani with greater vigour relating to the manner of appreciation of evidence in such a case. Shri Desai submitted that even though it may not be quite proper to make statements reflecting on the personal character of a candidate, yet every such statement does not amount to a corrupt practice since it does not prejudice the election in the prevailing political climate. Shri Desai submitted that the existing norms do not match the earlier norms and, therefore, every reflection on a candidate's character does not necessarily prejudice his election since the electorate is not influenced by such a statement in the prevailing electoral scene. Shri Ram Jethmalani went further and submitted that political leaders have a duty to educate the electorate against possible malpractice which are now not uncommon during the elections and making of such statements is desirable. Shri Ram Jethmalani also submitted that every allegation against a candidate of his committing a corrupt practice is not moral turpitude adversely affecting the personal character of the candidate to constitute the corrupt practice under Section 123(4) of the R.P. Act.
15. In the present case, the larger question posed by Shri Ram Jethmalani does not arise for consideration and, therefore, we need not express herein any concluded opinion thereon. We may only observe that the proposition enunciated by Shri Ram Jethmalani is too wide for acceptance even in the existing political climate adverted to by the learned counsel unless the election law leads to that inevitable conclusion exposing a hiatus in the legislative effort to achieve the avowed object of purity of elections.
We would also like to observe that the suggestion of a liberal construction of the election law relating to corrupt practices by appreciation of evidence in 700 the manner suggested in the existing political climate wherein mud-slinging is commonplace, does not commend to us as the proper approach envisaged by the election law. If purity of elections is the essence of democracy and providing for invalidation of an election on the ground of commission of any corrupt practice is the object of enacting these provisions, it cannot be accepted that the election scene having degenerated over the years, appreciation of evidence for determining the commission of a corrupt practice must be made liberally because of the lower values in the arena of elections. If the rule of law has to be preserved as the essence of democracy of which purity of elections is a necessary concomitant, it is the duty of the courts to appreciate the evidence and construe the law in a manner which would subserve this higher purpose and not even imperceptibly facilitate acceptance, much less affirmance, of the failing electoral standards. For democracy to survive, rule of law must prevail, and it is necessary that the best available men should be chosen as people's representatives for proper governance of the country. This can best be achieved through men of high moral and ethical values who win the elections on a positive vote obtained on their own merit and not by the negative vote of process of elimination based on comparative demerits of the candidates.
It is also necessary that the impact of money power which has eliminated from electoral contest many men of undoubted ability and credibility for want of requisite financial support should be able to reenter the field to make the people's choice meaningful. This can be achieved only if elections are contested on a positive vote and the comparison is between the merits and abilities of the contestants without the influence of power and pelf and not between their comparative demerits and the support of money power. Apart from the other adverse consequences, the growing influence of money power has also the effect of promoting criminalisation of politics.
16. The increasing electoral malpractices, of which some like boot capturing have led even to amendment of the election law, make availability of evidence difficult and this cannot be ignored while applying the standard of proof of a quasi-criminal charge for the proof of a corrupt practice. The existing law does not measure up to the existing realities. The ceiling on expenditure is fixed only in respect of the expenditure incurred or authorised by the candidate himself but the expenditure incurred by the party or anyone else in his election campaign is safely outside the net of legal sanction. The spirit of the provision suffers violation through the escape route. The prescription of ceiling on expenditure by a candidate is a mere eye-wash and no practical check on election expenses for which it was enacted to attain a meaningful democracy.
This lacuna in the law is, however, for the Parliament to fill lest the impression is reinforced that its retention is deliberate for the convenience of everyone. If this be not feasible, it may be advisable to omit the provision to prevent the resort to indirect methods for its circumvention and subversion of the law, accepting without any qualm the role of money power in the elections. This provision has ceased to be even a fig leaf to hide the reality.
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17. We are constrained to make these observations on account of the repeated reference made at the hearing to the growing malpractices during elections, even though it was made for the purpose of persuading us not to attach any significance to statements relating to the personal character or conduct of a candidate since they are not taken seriously by the voters due to the falling ethical standard.
18. Real education of the electorate contemplates informing them of the past achievements and future plans of the political party on a positive note and its candidate's qualifications to serve that purpose compared with those of the other political parties and their candidates and not a projection of the comparative greater demerits of the opponents. This is with a view to emphasis that the functioning of the democracy depends on the quality of the men chosen for the governance of the country. This is the need which the election campaign is meant to serve in an election based on party lines, the qualifications of the candidates being material for this purpose.
19. The duty at the top echelons of leadership at the state and national levels of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.
20. The lament of Gadakh and Sharad Pawar of despair against the financial might of Vikhe Patil was indeed farcical and sounds comical in view of their own considerable resources including the power of the ruling party and the active support of the Chief Minister of the State. We cannot accept that the alleged offending portions of the speeches of Gadakh and Sharad Pawar were educative of the electorate even if they do not constitute the corrupt practice under Section 123(4) of the R.P. Act. To suggest that the electorate needs to be warned against the purchase of votes by anyone is to insult their intelligence. Past experience has shown that even the illiterate section of the electorate is educated enough to remain uninfluenced by power and pelf. This it has shown more than once by rejecting the high and the mighty in power when it felt that they had failed to discharge their true obligation.
21. We must also add that even if we come to the conclusion that these statements or any of them do not constitute the corrupt practice under Section 123(4), it only means that the existing law does not frown upon the same to visit it with any adverse consequence, but that does not mean that it is a desirable practice during the election campaign. It is one thing to say that a statement does not constitute corrupt practice but entirely different to 702 suggest that it is a desirable electoral practice forming a part of the programme for education of the electorate.
22. We emphasise this fact on account of the vehemence with which Shri Ram Jethmalani canvassed for acceptance of the view that all these statements are within the permissible electoral practice, necessary for education of the electorate. We are unable to subscribe to this view which can only lead to a further degeneration of the waning morality in the electoral scene, when the felt need is for curbing any such tendency to ensure purity of elections.
23. The question therefore is : Whether in the law as it exists, all or any of the statements proved to have been made by Gadakh or Sharad Pawar constitute the corrupt practice under Section 123(4) of the R.P. Act?
CORRUPT PRACTICE UNDER SECTION 123(4) OF THE R.P. ACT
24. Several authorities were cited to emphasise the strictness of pleadings in election petitions and the pleadings necessary to raise a triable issue of the corrupt practice under Section 123(4). It is not necessary to deal with all the authorities cited since in the present case even assuming there is no such defect in the election petition, many statements attributed to Gadakh and all the statements attributed to Sharad Pawar do not constitute the corrupt practice under Section 123(4) of the R.P. Act. The cases on which particular emphasis was laid by Shri Ashok Desai on behalf of Gadakh are alone referred briefly. In Samant N. Balakrishna v. George Femandez2 it was held that the facts which constitute the corrupt practice must be stated and the facts must be correlated to one of the heads of the corrupt practice; and that an election petition without the material facts relating to a corrupt practice is no election petition at all. In Azhar Hussain v. Rajiv Gandhi3 it was held that a petition is liable to be summarily dismissed in case of petitioner's failure to furnish any of the material facts and particulars which are essential for disclosing a cause of action relating to a charge of corrupt practice. In Lalit Kishore Chaturvedi v.
Jagdish Prasad Thada4 the pleading in election petition was found to be deficient but even on facts the corrupt practice alleged was found to be not proved. Similarly, in Daulat Ram Chauhan v. Anand Sharma5 the requirement of pleading of a corrupt practice alleged was emphasised.
25. In M.J. Zakharia Sait v. T.M. Mohammad6 it was held that when the corrupt practice alleged is based on an innuendo in the false statement published, then the innuendo meaning must be specifically pleaded and proved.
Accordingly, the attempt made by Shri P.P. Rao at the hearing to suggest that the statement made that Vikhe Patil had an election budget of 2 (1969) 3 SCC 238 :(1969) 3 SCR 603 3 1986 Supp SCC 315 4 1990 Supp SCC 248 5 (1984) 2 SCC 64 6 (1990) 3 SCC 396 703 Rs 3 crores meant that he had that much amount of ill-gotten money, cannot be taken note of since such an innuendo is neither pleaded nor proved.
26. The scope of an appeal under Section 116-A of the Representation of the People Act is as wide as in a civil appeal. This Court has to dispose of the appeal by exercising the same jurisdiction as is exercised in an appeal against the original judgment of the High Court. It is well settled that allegations of corrupt practice are of a quasi-criminal nature and the proof that would be required in support of such allegations would be as in a criminal charge and not mere preponderance of probabilities as in a civil matter. (See Surinder Singh v. Hardial Singh7.)
27. In Magraj Patodia v. R. K. Birla8 it was held that many times corrupt practices may not be established by direct evidence and the same may have to be inferred from the proved facts and circumstances, 'but the circumstances proved must reasonably establish that the alleged corrupt practice was committed by the returned candidate'. It was also emphasised that preponderance of probabilities is not sufficient proof in such a matter.
28. The requirements of Section 123(4) of the R.P. Act may now be considered. The provision is as under:
"123. Corrupt practices.- The following shall be deemed to be corrupt practices for the purposes of this Act:
(4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election."
29. It is clear that every statement of fact in relation to the personal character or conduct of any candidate does not amount to a corrupt practice under Section 123(4) unless all the requirements of the provision are satisfied, notwithstanding the fact that such a statement may be defamatory in character. The additional requirements to constitute a corrupt practice are obviously to maintain the delicate balance between the freedom of speech of an individual and public interest of giving full information to the electorate of the candidates. There is no presumption of falsity of such a statement of fact for the purpose of Section 123(4) as it is under the law of defamation; and apart from proving the statement of fact to be false, it must also be shown that the maker of the statement either believed it to be false or did not believe it to be true.
Irrespective of the quantum of evidence necessary to discharge the initial onus of leading evidence, the burden of proving these requirements on the evidence adduced remains on the person alleging 7 (1985) 1 SCC 91 8 (1970)2SCC888:(1971)2SCR 118 704 commission of the corrupt practice. The object of making this provision more stringent is to emphasise the significance of freedom of speech in this sphere while prohibiting the making of such statements of fact relating to the personal character or conduct of any candidate which are not merely false but which are also believed to be false or not believed to be true by the maker. The greater latitude in election law is meant to serve the public purpose if the statement found to be false is made with the belief in its truth based on reasonable grounds and it is not intended to be a licence for making a scurrilous attack on the opponents recklessly.
30. The primary requirements of Section 123(4) are that the statement should be a 'statement of fact' which is 'false', and which the maker either "believes to be false" or "does not believe to be true". If these requirements are not satisfied, the further inquiry to ascertain the satisfaction of the remaining requirements of Section 123(4) serves no useful purpose. No doubt, the burden of proving the satisfaction of all these requirements is on him who alleges commission of the corrupt practice. The onus of leading evidence relating to some requirements is however light in view of their nature. Once the initial onus is discharged, the onus shifts to the other side. For proving the statement of fact to be 'false', the initial onus is discharged and the burden shifts to the other side by assertion of its falsity on oath hereafter it is for the other side to rebut the same. Similarly, the nature of belief of the maker being primarily related to the state of mind of the maker, the initial burden is discharged by an assertion on oath to that effect. If there be any circumstances relevant for proving and justifying the belief of the maker, that also would be a matter of evidence. The maker of the statement knows best the material on which his belief was formed and, therefore, it is for him to prove the same. Whether the maker of the statement believed it to be false or did not believe it to be true, is then ordinarily a matter of inference from the facts so proved.
31. The meaning of the expression "statement of fact" was a point of considerable debate at the Bar. The true meaning of this expression is of significance because several statements attributed to Gadakh and Sharad Pawar relate to apprehensions about Vikhe Patil's likely future conduct and not to his acts done in the past or at the time of making the statement. It was contended by Shri Ashok Desai for Gadakh and Shri K. Parasaran for Sharad Pawar that every statement is not a 'statement of fact' and, therefore, a statement made about future apprehension or opinion of the maker, does not fall within the ambit of this expression.
It was urged by them that most of the statements attributed to Gadakh and all the statements attributed to Sharad Pawar do not constitute 'statement of fact' within the meaning of this expression in Section 123(4). Shri P.P. Rao, on the other hand, contended that the expression "statement of fact" has to be given a wider meaning to include even a statement relating to the state of mind of the other person about his future conduct and, therefore, all the statements attributed to Gadakh and Sharad Pawar fall within the meaning of this expression.
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32. There can be no dispute that the meaning of the expression "statement of fact" used in Section 123(4), must be such which is apposite in the context and even if the meaning of the word 'fact' be wider to include opinion about another person and apprehensions about his future conduct, that is not sufficient to so construe the expression "statement of fact" in this provision unless it fits in the context. A pragmatic test is to examine whether the meaning given to the expression "statement of fact" is capable of satisfying the other requirements of the provision. It is only that meaning of this expression which is capable of satisfying the other requirements of the provision which can be its true meaning in the context.
33. For constituting the corrupt practice in Section 123(4), all the requirements thereof must be satisfactorily proved. A 'statement of fact' for the purpose of Section 123(4) can be one which is capable of proof as 'false' and which the maker either 'believed to be false' or 'did not believe to be true' at the time of making it. These further requirements of its falsity and nature of belief of the maker at the time of making the statement of fact are essential requirements without which the 'statement of fact' is not the one contemplated by Section 123(4). It needs no elaboration to say that a ,statement of fact' can be proved to be 'false' only if it relates to an event which has happened and not to a hypothetical future possibility.
Similarly, the belief of the maker about its falsity or the lack of belief in its truth relates to an existing fact and not to a hypothetical future apprehension howsoever honestly one may believe in its likelihood. It is clear that any statement made which is a conjecture of a likelihood in future, would not come within the ambit of the expression "statement of fact" used in Section 123(4). This is also supported by the fact that another requirement of Section 123(4) is that the statement of fact made should be, "reasonably calculated to prejudice the prospects of that candidate's election". This further requirement cannot be satisfied by merely stating a likely apprehension for the future and if the event does not happen, this requirement cannot be tested. It is a different matter if the statement amounts to an opinion relating to the personal character or conduct of any candidate which is based on existing or past acts of the candidate. In other words, if the statement made is that a candidate is a ,murderer', that would imply that he had committed a murder and that amounts to a 'statement of fact' for the purpose of Section 123(4).
34. The view we have taken finds support from the meaning of 'fact' in the realm of jurisprudence. Relevant extracts from textbooks are as under:
"There is yet a third meaning of the expression 'question or matter of fact' in which it is contrasted with a question or matter of opinion. A question of fact is one capable of being answered by way of demonstration a question of opinion is one that cannot be so answered. The answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong. The past history of a company's business is a matter of fact; but its prospects of successful business in the future is a matter of opinion ......
706 (Salmond on Jurisprudence, 12th Edn., at page 69) "Secondly, fact and opinion are frequently contrasted. Whether a company has been prosperous in the past is a matter of fact, whether it will fulfil the expectations aroused by its prospectus is a matter of opinion..... (emphasis supplied) (A Textbook of Jurisprudence by George Whitecross Paton, 4th Edn., at page 207) In Stroud's Judicial Dictionary, 4th Edn., the meaning of the expression "false statement of fact in relation to the personal character or conduct" of a candidate at a parliamentary election is given as "of fact, as distinguished from a false statement of opinion".
35. The meaning of the expression "statement of fact" in Section 123(4) of the R.P. Act has to be understood in this manner.
36. In Kumara Nand v. Brijmohan Lal Sharma9 it was reiterated that the onus is on the election petitioner to prove commission of the corrupt practice under Section 123(4), but the onus on him to prove that the statement is false is very light and can be discharged by the complaining candidate swearing to that effect; and once that is done the burden shifts to the candidate making the false statement of fact to show what his belief was. Wanchoo, J. (as he then was) speaking for the Court, stated thus: (SCR p. 136) "But though the onus is on the election petitioner to show all these things, the main things that the election petitioner has to prove are that such a publication was made of a statement of fact and that that statement is false and is with respect to the personal character or conduct of the election petitioner. The burden of proving that the candidate publishing the statement believed it to be false or did not believe it to be true though on the complaining candidate is very light and would be discharged by the complaining candidate swearing to that effect.
Thereafter it would be for the candidate publishing the statement to prove otherwise.
The question whether the statement was reasonably calculated to prejudice the prospects of the election of the candidate against whom it was made would generally be a matter of inference. So the main onus on an election petitioner under Section 123(4) is to show that a statement of fact was published by a candidate or his agent or by any other person with the consent of the candidate or his election agent and also to show that that statement was false and related to his personal character or conduct. Once that is proved and the complaining candidate has sworn as above indicated, the burden shifts to the candidate making the false statement of fact to show what his belief was. The further question as to prejudice to the prospects of election is generally a matter of inference to be arrived at by the tribunal on the facts and circumstances of each case." (emphasis supplied) 9 (1967) 2 SCR 127 : AIR 1967 SC 808 : 1967 Cri LJ 823 707 This decision summarises the extent of onus on the election petitioner and the manner in which it is discharged indicating that some of the requirements of Section 123(4) are matters of inference. This is the gist of the law on the point and is reiterated in the subsequent decisions of this Court. (Nepal Chandra Roy v. Netai Chandra Das10.)
37. In T.K. Gangi Reddy v. M.C. Anjaneya Reddy" the same position with regard to the manner in which the burden can be discharged by the election petitioner was stated and it was indicated that if on shifting of the burden to the respondent he fails to establish either that the petitioner did in fact commit the alleged act or to give any other circumstances which made him bona fide believe that he was so guilty, the court is entitled to say that the burden of proving the necessary facts has been discharged by the petitioner.
38. In Guruji Shrihari Baliram Jivatode v. Vithalrao12 while considering the meaning of the expression "personal character or conduct", it was indicated that the allegations must reflect on the moral or mental qualities of the candidate relating to his personal character or conduct and not merely to his political personality. In Ram Chand Bhatia v. Hardyal13 the distinction between the personal character or conduct of the candidate and his public or political character and conduct was explained and it was indicated that a statement relating to public or political character and conduct of the candidate is not a corrupt practice under Section 123(4).
39. Both sides referred to Inder Lal v. Lal Singh14. In that case, the allegation made against the candidate was that he was 'purchaser of the opponents of the Congress by means of money'. This was held to constitute the corrupt practice under Section 123(4) since the statement was construed to mean that the candidate buys 'by his offering bribes the votes of the opponents of the Congress'. It was held that bribery is itself a corrupt practice and if it is said against a candidate that he practises the corrupt practice of buying the votes of the opponents of the Congress by means of bribery, that clearly and unequivocally affects his private character. Shri P.P. Rao strenuously urged that this allegation was construed as a 'statement of fact' for the purposes of Section 123(4) in Inder Lal14 even though of a general nature. It is clear that the allegation related to the personal character of the candidate based on the fact, not mere speculation about the future, of purchasing votes by bribery and it was not simply a statement of the maker's opinion of the candidate. It was also made clear that having regard to the moral turpitude involved in the offering of the bribe, the statement in question affected his private character as well and not merely the political character of the candidate. Thus the emphasis was on the allegation relating 10 (1971) 3 SCC 303 11 (1960) 22 ELR 261 (SC) 12 (1969) 1 SCC 82 13 (1986) 2 SCC 121 : (1986) 1 SCR 177 14 1962 Supp 3 SCR 114: AIR 1962 SC 1156 708 to the personal character of bribing the voters which cannot form part of the political character since the act of bribery has a personal element.
40. In Sheopat Singh v. Ram Pratap15 it was held that any criticism of a person's political or public activities and policies is outside Section 123(4). It was further held that the word "calculated" means designed, it denotes more than mere likelihood and imports a design to affect voters.
41. The consent of the candidate for the purposes of Section 123(4) when the offending statement of fact which is false is published by any other person may be proved by inference from the circumstances and not necessarily by positive evidence to that effect since positive evidence of consent may not be available. (See B.R. Rao v. N.G. Ranga16;
Narasingh Charan Mohanty v. Surendra Mohanty17 and Samant N.
Balakrishna v. George FernandeZ2.)
42. The question, therefore, is : Whether the declaration of Gadakh's election to be void is sustainable and so also the naming of Sharad Pawar under Section 99 of the R.P. Act?
ALLEGATIONS OF CORRUPT PRACTICE UNDER
SECTION 123(4) OF THE R.P. ACT
43. The gist of the several statements attributed to Gadakh and Sharad Pawar which are alleged to constitute the corrupt practice under Section 123(4) of the R.P. Act are now enumerated for the sake of convenience before each of them is taken up for consideration. The requirements of Section 123(4) have been already indicated.
Re: Gadakh Yashwantrao Kankarrao (1) He stated that Vikhe Patil has an election budget of Rs 3 crores.
- This was stated by Gadakh in the meeting at Sonai on April 30, 1991 and in the interview given to Girish Kulkami on May 10, 1991 which was published in the