Kanwar Lal Gupta Vs. Amar Nath Chawla & Ors [1974] INSC 194 (3 October 1974)
BHAGWATI, P.N.
BHAGWATI, P.N.
SARKARIA, RANJIT SINGH
CITATION: 1975 AIR 308 1975 SCR (2) 269 1975 SCC (3) 646
CITATOR INFO :
RF 1975 SC 349 (32) O 1975 SC2299 (113,119,120,249,490,493,495,4 RF 1981 SC1068 (9) D 1985 SC1133 (2,3,6,8,14,17,21) RF 1987 SC1577 (21)
ACT:
Representation of the People Act (43 of 1951) ss. 77(1) and 123(6)-Expenses incurred by party sponsoring candidate in excess of the prescribed limit-If and when a corrupt Practice-Reform of election law suggested.
HEADNOTE:
Section 77(1) of the Representation of the People Act, 1951, provides that every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure, in connection with the election, incurred or authorised by him or by his election agent between the date of the publication of the notification calling the election and the date of declaration of result thereof, both dates inclusive; and s.
77(3) gays that the total of the said expenditure shall not exceed such amount as may be prescribed.
The objects of enacting a ceiling on the expenditure which may legitimately be incurred in connection with an election are:
(a)It should be open to any individual or to any political party, however small, to be able to contest an election on a footing of equality with any other individual or political party, however rich and well financed it may be, and no individual or political party should be able to secure an advantage over others by reason of its superior financial strength. The democratic process can function efficiently and effectively, for the benefit of the common good and reach out the benefits of self-government to the common man only if it brings about a participatory democracy in which every man, howsoever lowly or humble he may be, should be able to participate on a footing of equality with others.
Now money. plays an important part in the successful prosecution of an election campaign by buying advertisement and canvassing facilities, by providing the means for quick and speedy communications and movements and sophisticated campaign techniques, and also by the employment of paid workers where volunteers are found to be insufficient.
Therefore, if one political party or individual has larger resources available to it than another the former would certainly, under the present system of conducting elections, have an advantage over the latter in the electoral process.
[265C-F] (b)The other objective of limiting expenditure is to eliminate, as far as possible, the influence of big money in electoral process. If there were no limit on expenditure political parties would go all out for collecting contributions and obviously the largest contributions would be from the rich and the affluent who constitute but a fraction of the electorate. It is likely that some elected representatives would tend to share the views of the wealthy supporters of their political party, either because of shared background and association, increased access or subtle influenceswhich condition their thinking. In such an event, the result would be that thou ostensibly the political parties which receive such contributions may profess an ideology acceptable to the common man, they would in effect and substance be the representatives of a certain economic class, and their policies and decisions would be shaped by the interests of that economic class.
Persons of a particular class who have exclusive governmental power, even if they tried to act objectively, would tend to overlook the interests of other classes or view those interests differently. To this natural tendency may be added the fact that office bearers and elected representatives may quite possibly be inclined, though unconsciously and imperceptibly, to espouse the policies and decisions that will attract campaign contributions from affluent individuals and groups. Pre election donations would be Rely to operate as post-election promises resulting ultimately in the casualty of the interest of the common man. The small man's chance is the essence of Indian democracy and that would be stultified if large contributions from rich and affluent individuals or groups are not divorced from the electoral process.
[266E-F, 267C-D, E-F, G-H] 2-M255SupCII75 260 Under s, 123(6) not only is the incurring of expenditure in excess of the prescribed limit a corrupt practice but also the authorising of such expenditure. Authorising may be implied or express, and whether a particular expenditure wag impliedly authorised by the candidate would depend upon the facts and circumstances of each case as appearing from the evidence adduced before the court. [264H-265B] The reasonable interpretation of the provision, which would carry out its object and intendment and suppress the mischief and advance the remedy by purifying the election process and ridding it of the pernicious and baneful influence of big money, is, that the legislature could never have intended that what the individual candidate cannot do the political parties sponsoring him, or his friends and supporters, should be free to do. When a political party sponsoring a candidate incurs expenditure specifically in connection with his election, as distinguished from expenditure on general party propaganda, and the candidate knowingly takes advantage of it or participates in the programme or activity or consents to it or acquiesces in it, it would be reasonable to infer, save in special circumstances, that he impliedly authorised the political party to incur such expenditure; and he cannot escape the rigors of the ceiling by saying that he has not incurred expenditure but big political party has done so. The party candidate does not stand apart from his political party and if the political party does not want its candidate to incur the disqualification it must exercise control over the expenditure which may be incurred by it directly to promote the poll prospects of the candidate. The same proposition must hold good in case of expenditure incurred by friends and supporters directly in connection with the election of the candidate. If a candidate were to be subject to the limitation of the ceiling but the political party sponsoring him or his friends' and supporters were to be free to spend as much as they like in connection with his election, the object of imposing a ceiling would be completely frustrated and the beneficent provision enacted in the interest of purity and genuineness of the democratic process would be wholly emasculated. [268A-F] Ranajaya Singh v. Baijnath Singh & Ors. [1955] 1 S.C.R. 671, Ram Dayal v. Brijraj Singh & Ors. [1970] 1 S.C.R. 530, Magraj Patodia v. R. K. Birla & Ors. [1971] 2 S.C.R. 118 and B. Rajagopala Rao v. N. G. Ranga, A.I.R. 1971 S.C. 266, referred to.
In the present case, the first respondent's election to the Lok Sabha was challenged by the petitioner on various grounds, one of which wag that the first respondent incurred or authorised expenditure in excess of the prescribed limit of Rs. 10,000 in contravention of s. 77 and committed corrupt practice under s. 123(6). The High Court dismissed the election petition.
Allowing the appeal to this Court, Held : (1) The total expenditure proved to have been incurred or authorised by the first respondent exceeded the prescribed limit and therefore his election should be set aside on the ground of corrupt practice defined in s. 123(6) [316F] (a)A chart was furnished to the petitioner giving information as to the dates and places of the public meetings held in connection with the election of the first respondent and the names of the speakers who spoke at those public meetings. This chart was prepared in compliance with the directions of the trial court from the official records in the possession of the I.G. of Police. Therefore it is relevant and admissible in evidence under the first part of s. 35 of the Evidence Act. Though it is a weak type of evidence, and standing by itself cannot be regarded sufficient to establish the holding of a public meeting by the first respondent, it can be relied upon as a corroborative piece of evidence which may be considered along with other evidence in the case. The oral evidence thug corroborated, disclosed that in addition to the 23 public meetings admitted by the first respondent, 9 further public meetings were held on big behalf at various places.
The first respondent not only suppressed the expenditure on these nine additional public meetings, but, also he suppressed the real expenditure on the admitted 23 public meetings. [281G-282C, G-283A, 293A-C, 301A-B] (b)If the Court comes to the conclusion that' an item of expenditure has been suppressed in the return of election expenses, the mere fact that there is no sufficient evidence about the amount that must have been spent is no ground for ignoring the matter. It is the duty of the Court to asses all expenses as best as it 26 1 can though the court should not enter into the region of speculation or merely try to guess the amount that must have been spent. Generally it would be possible to arrive at an amount of expenditure on a conservative basis, and where it is possible to arrive at such an estimate, such estimated amount should be held as not shown by the candidate in his election account. [300E-G] Magraj Patodia v. R. K. Birla & Ors. [1971] 2 S.C.R. 11 8 and P. C. P. Reddiar v. S. Perumal, [1972] 2 S.C.R. 646 referred to.
(c)The first respondent owned the responsibility for expenses in respect of the 23 public meetings admitted by him. He also admitted in his evidence that he "bore the expenses of all the election meetings in my constituency".
Therefore, there is no scope for the argument that the expenses of any of these additional 9 public meetings were met by any Organisation or individual other than the first respondent. Even if the expenses of some of these nine public meetings were incurred by the District Pradesh Congress Committee or any other branch of the Congress organisation which sponsored his candidature, or by any other friend or supporter, such expenses must be held to have been authorised by the first respondent because, he knowingly took advantage of such public meetings by participating in them and consented to, or at any rate, acquiesced in such expenses. [292E-H] (2)It is not uncommon to find that during elections, posters and handbills are printed without complying with the requirement of section 127A, and sometimes containing scandalous material about rival candidates. There should therefore be some independent semi-judicial instrumentality set up by law, which would immediately investigate, even while the election fever is on and propaganda and canvassing are in progress and the evidence is raw and fresh, how the offending handbills and posters have come into existence.
[314A-D] Rahim Khan v. Khurshid Ahmed & Ors. C.A. 816 of 1973, decided on August 8, 1974, followed.
CIVIL APPELLATE JURISDICTION: Civil. Appeal No. 1549 of 1972.
Appeal from the Judgment & Order dated the 19th May, 1972 of the Delhi High Court in E.P. No. 2 of 1971.
S. N. Marwaha, A. K Marwaha and K. C. Dua, for the appellant.
M. N. Phadke, V. P. Nanda, N. S. Dass Bahl and D. N. Mishra, for respondent No. 1.
The Judgment of the Court was delivered by BHAGWATI, J.-The controversy in this appeal relates to the validity of election to the Lok Sabha from the Sadar Parliamentary Constituency in the Union Territory of Delhi.
Eleven candidates originally offered themselves for election from this constituency but out of them six withdrew their candidature with the result that only five remained in the field as contesting candidates. They were the petition and respondents. Nos. 1 to 4. The petitioner was put up as a candidate by the Jan Sangh, while the candidature of the first respondent 'Was sponsored by the Congress, which at that time, on account of the split in the Organisation, was known as the ruling Congress or the new Congress.
Respondents Nos. 2 to 4 were independent candidates. Though there were nominally five candidates, the real contest was between the petitioner and the first respondent. The polling took place on 5th March, 1971 and the result of the poll was declared on 11th March, 1971. The petitioner secured 55305 votes, while the first 262 respondent polled 98108 votes. The first respondent thus won by a large majority and was declared elected. The petitioner thereupon filed an election petition challenging the validity of the election of the first respondent on various grounds. The election petition was contested by the first respondent and, as the voluminous mass of record shows, it was fought out to a bitter and with great industry and thoroughness on both sides. Mr. Justice Andley of the Delhi High Court, who heard the election petition, found in an elaborate judgment that none of the grounds on which the election was sought to be invalidated was established and he accordingly dismissed the election petition with costs. The present appeal preferred by the petitioner impugns this judgment of Mr. Justice Andley.
The election petition was based on numerous grounds which were summarised in paragraphs and subsequently elaborated in paragraphs 12, 14, 18 to 21 and 24 to 26. The ground set out in paragraph 12 was that the elector rolls, on the basis of which the election had been held, were imperfect and defective, and that vitiated the election. Paragraph 14 alleged the invalidity of the amendment in rule 56 of the Conduct of Election Rules 1961 and paragraphs 18 and 19 challenged the validity of the election on the ground that about a Jac or more ballot papers, which had been chemically treated, were fraudulently introduced and that had materially affected the result of the election. The charge in paragraphs 20 and 21 was that the first respondent was guilty of corrupt practice, in that the first respondent, his election agent and other persons with his consent, including the first respondent, had printed and published a handbill and a poster containing statements in relation to the personal character or conduct of the petitioner which ware false and which the first respondent did not believe to be true, and which were reasonably calculated to prejudice the prospects of the petitioner's election. Paragraph 24 also charged a similar corrupt practice on the allegation that these statements were repeated by the first and the fifth respondents in public meetings as also during the course of canvassing. And lastly, it was alleged in paragraphs 25 and 26 that the first respondent had incurred or authorised expenditure in excess of the prescribed limit of Rs. 10,000 in contravention of section 77 of the Representation of the People Act, 1951. These were broadly the grounds on which the election of the first respondent was sought to be declared void by the petitioner.
Though the first, second and fifth respondents filed their respective written statements, the contest was only on behalf of the first and fifth respondents. The second respondent supported the petitioner : his support was however not of much value since he did not take any active part in the petition. Respondents 3 and 4 were obviously not interested in the petition and they did not even care to appear or file any written statement. The first and fifth respondents raised in their written statements certain preliminary objections and also denied the various allegations made in the petition and contested the grounds on which the petitioner claimed to set aside the election of the first respondent. We shall deal with the contents of these written statements a little later when we examine the specific charges leveled against 26 3 the first respondent. Suffice it to state for the present that on the basis of the preliminary objections raised in the written statements, the learned Trial Judge framed four preliminary issues and they were decided by an order dated 6th August, 1971. So far as the first preliminary issue is concerned, the learned Trial Judge held that paragraphs 9, 12, 18 to 21 and 24 to 26 did not suffer from lack of concise statement of material facts, but they did not give full particulars of the allegations and he accordingly directed the petitioner to furnish further particulars with respect to paragraphs 18 to 21, 24 and 25 as specified in the schedule to the order. The second and the fourth preliminary issues do not survive for consideration : they were decided against the petitioner and the petitioner does not challenge the decision in appeal. The third preliminary issue was decided in favour of the petitioner but it is now meaningless to discuss it because the petitioner is not pressing the ground set out in paragraphs 18 and 19 in support of the appeal.
Pursuant to the aforesaid order dated 6th August, 1971, the petitioner furnished particulars of the allegations contained in paragraphs 18 to 21, 24 and 25 by an affidavit dated 19th August, 1971. A reply to these particulars was given by the first respondent on 26th August, 1971. We shall have occasion to refer to these particulars and the reply made to them when we examine the arguments advanced on behalf of the parties.
The learned Trial Judge then framed issues on the merits by an order dated 3rd September, 1971. Issues 1 to 7 of these issues relate to the ground set out in paragraphs 18 and 19.
It is not necessary to refer to them since they were decided against the petitioner by the learned Trial Judge and the correctness of this decision is not assailed on behalf of the petitioner in the present appeal. Issue 8 raised the question whether the first respondent, his election agent and other persons with the consent of the first respondent or his election agent committed the corrupt practices charged in paragraphs 20 and 21 and Issue 9 raised a similar question in regard to the corrupt practices set out in paragraph 24. The question whether the first respondent incurred or authorised expenditure in excess of the prescribed limit of Rs. 10,000/in contravention of section 77 as alleged in paragraph 25, was put in issue in Issue 10.
Issues 11, 12 and 13 raised certain subsidiary questions but it appears from the judgment of the learned Trial Judge that they were not pressed by the learned Advocate appearing on behalf of the petitioner before the Trial Court. We need not, therefore, spend any time on these issues. The last issue was issue 14 which was directed against the fifth respondent who was alleged to have committed corrupt practices.
There was enormous oral as well as documentary evidence led on behalf of both sides. This evidence discloses certain curious and unusual features to which we shall advert in course of time, but there can be no doubt that it evidences very careful and thorough preparation of the case on either side. Not an inch of ground appears to have been conceded by one side to the other and every move in this long and bitter contest, from one side or the other, seems to have been well thought 264 out and relentlessly pursued. The learned Trial Judge, on a consideration of the evidence presented before him, came to the conclusion that issues 8, 9 and 10 were not established by the petitioner and there was also no satisfactory proof in regard to issue 14 and accordingly, by a judgment dated 19th May, 1972 he rejected the charges of corrupt practice against the first and fifth respondents and dismissed the election petition with costs. The petitioner being aggrieved by the judgment of the learned Trial Judge preferred the present appeal under section 116 A of the Representation of the People Act, 1951.
The petitioner assailed the correctness of the judgment of the learned Trial Judge only on issues 8, 9, 10 and 14. The judgment, in so far as it related to issues 1 to 7 and 11 to 13 was accepted by the petitioner and it is, therefore, not necessary to refer to the facts in so far as they bear on, those issues. We shall confine ourselves only to such of the facts as are relevant to issues 8, 9, 10 and 14 and instead of setting them out in a narrative form before commencing discussion of the arguments, what we propose to do is to refer to the relevant facts while discussing each particular issue. We shall.proceed in the order in which these issues were argued before us.
We first take up issue 10. The charge against the first respondent under this issue was that be incurred or authorised expenditure in excess of the prescribed limit of Rs. 10,000 in contravention of section 77 and thereby committed the corrupt practice defined in section 123(6) of the Act. Section 123 sets out various corrupt practices which have the effect of invalidating an election and one of them is the incurring or authorising the expenditure in contravention of section 77 : vide sub-section (6). Subsection (1) of section 77 provides that "every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his. election agent, between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive", while sub-section (3) says that "the total of the said expenditure shall not exceed such amount as may be prescribed." It was common ground between the parties that the expenditure prescribed for a parliamentary constituency in the Union Territory of Delhi was Rs. 10,000.
The first respondent and his election agent were, therefore, prohibited by section 77 from incurring or authorising expenditure in connection with his election exceeding Rs.
10,000, and if the first respondent or his election agent incurred or authorised such expenditure in excess of Rs.
10,000, it would be a corrupt practice voiding his election under section 123(6). The question which, therefore, arises for consideration is whether the first respondent or his election agent incurred or authorised expenditure in connection with his election exceeding Rs. 10,000.
Now, before we proceed to discuss the evidence bearing on this question, we must clear the ground by pointing out that not only is the incurring of excessive expenditure a corrupt practice, but also the authorising of such expenditure, and authorising may be implied as well as express. Where the authorising is express, there is no difficulty 265 in bringing home the charge of corrupt practice against the candidate But a somewhat difficult question on facts may arise where the charge is sought to be proved against the candidate on the basis that the impliedly authorised excessive expenditure. Whether a particular expenditure was impliedly authorised by the candidate must depend on the facts and circumstances of each case as appearing from the evidence adduced before the Court. This question Would arise in a challenging form where expenditure in connection with the election is incurred, not by the candidate, but by the political party which has sponsored him or his friends and supporters. Can the limit on the expenditure be evaded by the candidate by not spending any moneys of his own but leaving it to the political party or his friends and supporters to spend an amount far in excess of tHe limit ? The object of the prevision limiting the expenditure is twofold. In the first place, it should be open to individual or any political party, howsoever small, to be able to contest an election on a footing of equality with any other individual or political party, howsoever rich and well financed it may be, and no individual or political party should be able to secure an advantage over others by reason of its superior financial strength. It can hardly be disputed that the way elections are held in our country, money is bound to play an important part in the successful prosecution of an election campaign. Money supplies "assets for advertising and other forms of political solicitation that increases the candidate's exposure to the public." Not only can money buy advertising and canvassing facilities such as hoardings, posters, handbills, brochures etc. and all the other paraphernalia of an election campaign, but it can also provide the means for quick and speedy communications and movements and sophisticated campaign techniques and is also "a substitute for energy" in that paid workers can be employed where volunteers are found to be insufficient. The availability of large funds does ordinarily tend to increase the number of votes a candidate will receive. If, therefore, one political party or individual has larger resources available to it than another individual or political party, the former would certainly, under the present system of conducting elections, have an advantage over the latter in the electoral process. The former would have a significantly greater opportunity for the propagation of its programme while the latter may not be able to make even an effective presentation of its views.
The availability of disproportionately larger resources is also likely to lend itself to misuse or abuse for securing to the political party or individual possessed of such resources, undue advantage over other political parties or individuals. Douglas points out in his book called Ethics in Government at page 72, "if one party ever attains overwhelming superiority in money, newspaper support, and (government) patronage, it will be almost impossible, barring an economic collapse, for it ever to be defeated." This produces anti-democratic effects in that a political party or individual backed by the affluent and wealthy would be able to secure a greater representation than a political party or individual who is without any links with affluence or wealth. This would result in serious discrimination between one political party or individual and another on the basis of money power and that in its turn would mean that "some voters are denied an 'equal' 266 voice and some candidates are denied an "equal chance". It is elementary that each and every citizen has an inalienable right to full and effective participation in the political process of the legislatures and this requires that each citizen should have equally effective voice in the election of the members of the legislatures. That is the basic requirement of the Constitution. This equal effective voice--equal opportunity of participation in the electoral process-would be denied if affluence and wealth are to tilt the scales in favour of one political party or individual as against another. The democratic process can function efficiently and effectively for the benefit of the common good and reach out the benefits of self-government to the common man only if it brings about a participatory democracy in which every man, howsoever lowly or humble he may be, should be able to participate on a footing of equality with others. Individuals with grievances, men and women with ideas and vision are the sources of any society's power to improve itself. Government by consent means that such individuals must eventually be able to find groups that will work with them and must be able to make their voices heard in these groups and no group should be insulated from competition and criticism. It is only by the maintenance of such conditions that democracy can thrive and prosper and this can be ensured only by limiting the expenditure which may be incurred in connection with elections, so that, as far as possible, no one single political party or individual can have unfair advantage over the other by reason of its larger resources and the resources available for being utilised in the electoral process are within reasonable bounds and not unduly disparate and the electoral contest becomes evenly matched. Then alone the small man will come into his own and will be able to secure proper representation in our legislative bodies.
The other objective of limiting expenditure is to eliminate as far as possible, the influence of big money in the electoral process. If there were no limit on expenditure, political parties would go all out for collecting contributions and obviously the largest contributions would be from the rich and affluent who constitute but a fraction of the electorate. The pernicious influence of big money would then play a decisive role in controlling the democratic process in the country. This would inevitably lead to the worst form of political corruption and that in its wake is bound to produce other vices at all levels.
This danger has been pointed out in telling words in the following passage from the notes in Harvard Law Review, Vol. 66, p. 1260:
"A less debatable objective of regulating campaign funds is the elimination of dangerous financial pressures on elected officials.
Even if contributions are not motivated by an expected return in political favours, the legislator cannot overlook the effects of his decisions on the sources of campaign funds." It is difficult to generalise about the degree of influence which the large contributors may wield in shaping the policies and decisions of the political party which they finance. It is-widely acknowledged, however, that, at the very least, they would have easy access to the leaders and representatives of the political party. But it would be naive to suggest 267 that the influence ends with mere access. It may safely be assumed that hardly any politicians "would consciously sell their votes" ; the result may be nearly the same, if one accepts Herbert Alexander's analysis of the subtle factors that influence a political party's actions :
"Many politicians-who do what they honestly think is right, never realize that they are mere spokesmen for their financial supporters. A legislator can avoid a Conflict of interest by investing in government bonds, but he cannot chance the conditioning that leads him to believe that what is good for his former company or present backers is good for the country." It is likely that some elected representatives would tend to share the views of the wealthy supporters of their political party, either because of shared background and associations, increased access or subtle influences which condition their thinking. In such event the result would be that though ostensibly the political Parties which receive such contributions may profess an ideology acceptable to the common man, they would in effect and substance be representative of a certain economic class and their policies and decisions would be shaped by the interests of that economic class. It was over a hundred years ago that John Stuart Mill observed that persons of a particular class who have exclusive governmental power, even if they try to act objectively, will tend to overlook the interests of other classes, or view those interests differently. And to this natural tendency may be added the fact that office bearers and elected representatives may quite possibly be inclined, though unconsciously and imperceptibly, to espouse policies and decisions-that will attract campaign contributions from affluent individuals and groups. It was said if the electoral process in the United States of America : "Members of the Rockefeller and Du Pont families invest in the election of a Republican President because they sense that if that party takes over the White House, their interests will gain more sympathetic attention-" "The central objective of contributions is access to the power of the elected official-" "For a gift of a few hundred dollars an individual may gain, in return, the intercession of a Congressman that will get him a government contract or a tariff provision that will ultimately net him or his business tens of thousands of dollars." It is obvious that pre-election donations would be likely to operate as postelection promises resulting ultimately in the casualty of the interest of the common man, not so much ostensibly in the legislative process as in the implementation of laws and administrative or policy decisions. The small man's chance is the essence of Indian democracy and that would be stultified if large contributions from rich and affluent individuals or groups are not divorced from the electoral process. It is for this reason that our Legislators, in their wisdom, enacted a coiling on the expenditure which may legitimately be incurred in connection with an election.
This background must inform the court in the interpretation of this vital and significant provision in the election law of our country.
268 Now, if a candidate were to be subject to the limitation of the ceiling, but the political party sponsoring him or his friends and supporters were to be free to spend as much as they like in connection with his election, the object of imposing the coiling would be completely frustrated and the beneficent provision enacted in the interest of purity and genuineness of the democratic process would be wholly emasculated. The mischief sought to be remedied and the evil sought to be suppressed would enter the political arena with redoubled force and vitiate the political life of the country. The great democratic ideal of social, economic and political justice and equality of status and opportunity enshrined in the Preamble of our constitution would remain merely a distant dream eluding our grasp. The legislators could never have intended that what the individual candidate cannot do, the political party sponsoring him or his friends and supporters should be free to do. That is why the legislature wisely interdicted not only the incurring but also the authorising of excessive expenditure by a candidate. When the political party sponsoring a candidate incurs expenditure in connection with his election, as distinguished from expenditure on general party propaganda, and the candidate knowingly takes advantage of it or participates in the programmers or activity or fails to disavow the expenditure or consents to it or acquiesces in. it, would be reasonable to infer, save, in special circumstances, that he impliedly authorised the political party to incur such expenditure and he cannot escape the rigour of the ceiling by saying that he has not incurred the expenditure, but his political party has done so. A party candidate does not stand apart from his political party and if the political party does not want the candidate to incur the disqualification, it must exercise control over the expenditure which may be incurred by it directly to promote the poll prospects of the candidate. The same proposition must also hold good in case of expenditure incurred by friends and supporters directly in connection with the election of the candidate. This is the only reasonable interpretation of the provision which would carry out its object and intendment and suppress the mischief and advance the remedy by purifying our election process and ridding it of the pernicious and baneful influence of big money. This is in fact what the law in England has achieved. There, every person, on pain of criminal penalty, is, required to obtain authority from the candidate before incurring any political expenditure on his behalf. The candidate is given complete discretion in authorising expenditure up to his limit. If expenditure made with the knowledge and approval of the candidate exceeds the limit or if the candidate makes a false report of the expenditure after the election, he is subject not only to criminal penalties, but also to having his election voided. It may be contended that this would considerably inhibit the electoral campaign of political parties. But we do not think so. in the first place, a political party is free to incur any expenditure it likes on its general party propaganda though, of course, in this area also some limitative ceiling is eminently desirable coupled with filing of return of expenses and an independent machinery to investigate and take action. It is only where expenditure is incurred which can be identified with the election of a given candidate that it would be liable to be added to the expenditure of that candidate as being impliedly authorised by him. Secondly, 269 if there is continuous community involvement in political administration punctuated by activated phases of well discussed choice of candidates by popular participation in the process of nomination, much of unnecessary expenditure which is incurred today could be avoided. Considerable distance may not have to be traveled by candidates and supports nor hidden skeletons in political cupboards tactically uncovered, propagandist marijuana ' skillfully administered, temptations of office strategically held out nor violent demonstrations disruptiveness attempted. The dawn-to-dawn multiple speeches and monster rallies, the flood of posters and leaflets and the organising of transport and other arrangements for large numbers would become otiose. Large campaign funds would not be able to influence the decision of the electors if the selection and election of candidates becomes people's decision by discussion and not a Hobson's choice offered by Political parties. Limiting election expenses must be part of the political process.
This view, which we are taking, does not run counter to any earlier decisions of this Court. The first decision to which we must refer in this connection is Rananjaya Singh v.Baijnath Singh & Ors.(1). There the corrupt practice charged against the elected candidate was that certain persons who were in employment of his father worked for him in connection with the election and their number exceeded the maximum number of persons who could be employed in connection with the election as specified in Sch. VI read with section 77. This charge was negatived by a Bench of five judges of this Court. The Bench held that in order to attract the inhibition of the relevant sections it was necessary that the employment of persons other than or in addition to those specified in Sch. VI should be by a candidate or his agent and since in that case, the persons who worked in connection with the election were neither employed nor paid by the elected candidate or his agent, the prohibitory requirement of section 77 read with section 123(7) was not breached. It will be seen that this decision was concerned primarily with the question whether servants of the father of the elected candidate, who worked for the elected candidate in connection with the election, were liable to be taken into account in determining whether the maximum number of persons who may be employed for payment in connection with the election were exceeded. It is no doubt true that this Court observed that no expenditure was incurred by the elected candidate over and above what was shown in his return of expenses and he could not, therefore, be said to have concealed such expenditure, but that was obviously because those persons who worked in connection with the election wore not paid by him. This Court had no occasion to consider whether the elected candidate should be said to have authorised any expenditure by knowingly taking advantage of the services of these persons, because no such argument was advanced before this Court. In fact such an argument could not plausibly be advanced because the salaries paid by the father to these persons were not for the purpose of working in connection with the election. The (1) [1955] 1 S.C.R. 671.
270 salaries were paid because they were servants in the regular employment of the father and it was merely at the request of the father that "they assisted the son in connection with the election which strictly speaking they were not obliged to do". This decision does not, therefore, run contrary to what we have said.
We may then refer to the decision of this Court ill Ram Dayal v. Brijraj Singh & Ors.(1) The question which arose for consideration in that case was whether certain expenditure incurred by the Maharaja of Gwalior and the Rajmata in connection with the election of Brijraj 'Singh was liable to be included in his election expenses. Shah, J.,
77(1) only the expenditure incurred or authorised by the candidate himself or by his election agent is required to be included in the account or return of election expenses and thus expenses incurred by any other agent or person without anything more need not be included in the account or return; as such incurring of expenditure would be purely voluntary." (Emphasis supplied) These observations would show that mere incurring or expenditure by any other person in connection with the election of a candidate, without something more, would not make it an expenditure authorised by the candidate. But if there is something more which can reasonably lend itself to the inference of implied authorisation, particularly having regard to the object and intendment of the provision limiting expenditure, the Court would readily draw such an inference because the paramount object of this provision is to bring about, as far as possible, equality in availability of resources and eliminate the corrupting influence of big money. Ibis significant to note that in this case the Court proceeded to examine whether the evidence was sufficient to establish that Brijraj Singh traveled with the Maharaja in his helicopter and visited several villages for his election campaign ,and held that the evidence in this connection was not reliable. This inquiry would have been wholly unnecessary unless the Court was of the view that if Brijraj Singh could be shown to have travelled 'With the Maharaja in his helicopter and visited several villages in connection with his election campaign, that would be sufficient to invest the expenditure incurred by the Maharaja with the character of expenditure impliedly authorised by Brijraj Singh. This decision, therefore far from contradicting the view taken by us, actually supports.
We find the same view taken by this Court in the subsequent decision in Magraj Patodia v. R. K. Birla & Ors.(2) There also Hegde, J., (1) [1970] 1 S.C.R. 530.
(2) [1971] 2 S.C.R. 11 8.
271 speaking on behalf of a Division Bench of two judges;
observed;, after referring to the decisions in Rananjaya Singh v. Baijnath Singh, & Ors. (supra) and Ram Dayal v.
Brijraj Singh & Ors. (supra) "This Court as well as the High Courts have taken the view that the expenses incurred by a political party to advance the prospects of the candidates put up by it, without more do not fall within s. 77." (emphasis supplied).
The same view was reiterated again by a Division Bench of two judges of this Court in B. Rayagopala Rao v. N. C. Ranga.(1) The question, therefore, in cases of this kind always is whether there is someting more which may legitimately give rise to an inference of implied authorisation by a candidate. What could be that something more is indicated by us in the proposition formulated above, though we must confess that by its very nature it is not possible to Jay down the exhaustive enumeration of the circumstances in which that something more may be inferred.
With these observations in regard to the scope and ambit of the provision limiting expenditure, we may now proceed to examine the facts and see whether the first respondent incurred or authorised expenditure exceeding Rs. 10,000/in connection with his election.
The first item of expenditure which we must consider in this connection relates to expenses incurred in holding public meetings in connection with the election of the first respondent. The first respondent in the return of expenses filed by him with the District Election Officer showed three amounts as having been spent by him in connection with his public meetings. One was an amount of Rs. 188/paid to Tandon Tent & Furniture House for furnishings supplied for twelve public meetings held between 20th February, 1971 and 2nd March,, 1971. This expenditure was supported by the bill of Tandon Tent & Furniture House, R-25 which showed that for each of the twelve public meetings, Tandon Tent & Furniture House had supplied twenty durris, six takhats and two chaddars at an aggregate charge of Rs. 15/per meeting.
The other was an amount of Rs. 180/-, which according to the first respondent, was paid to Saini Electric Works for microphone, loudspeakers and lighting arrangements made at the same twelve public meetings. The payment of this amount was sought to be supported by the receipt of Saini Electric Works,. R-27 which showed a consolidated charge of Rs. 180/"on account of loudspeaker and lighting arrangements for the period from 20th February, 1971 to 2nd March, 1971".
The third was an amount of Rs. 440/paid to Aggarwal Tent House for furnishings and electric equipment supplied at eleven public meetings and the bill of Aggarwal, Tent House R-26 for this amount showed that Aggarwal Tent House had supplied for each public meeting one takhat, four durries, two chandanis, one microphone and four floodlights for a total (1) A.I.R. 1971 S.C. 266.
272 amount of Rs. 440/inclusive of Rs. 100/for cartage and Rs. 40/for labour charges. The first respondent thus admitted a total number of twenty-three public meetings and according to him, the total ,expenditure at each of these public meetings was about Rs. 30/for furnishings as well as electric equipment, the aggregate expenditure being only Rs.800/-. The petitioner challenged this figure of expenditure given by the first respondent and contended that in addition to twenty-three public meetings admitted by the first respondent, many more public meetings were held in connection with the election of the first respondent and much larger expenditure was incurred in each of these public meetings than what was shown by the first respondent in the bills of Tandon Tent & Furniture House and Aggarwal Tent House and the receipt of Saini Electric Works. The argument of the petitioner was that in fact the first respondent had held more than fifty public meetings and at each of these public meetings he had incurred expenditure of not less than Rs. 200/and the expenditure incurred in these public meetings itself exceeded the prescribed limit of Rs. 10,000/-. The petitioner also urged that a huge meeting was organised by the first respondent in connection with the election of the first respondent at Idgah Road which was addressed by the Prime Minister and this meeting alone cost about Rs. 50,000/and the ceiling of Rs. 10,000/was clearly exceeded. These contentions require a close look at the evidence led on behalf of the parties.
We will first turn to consider the number of meetings organised in connection with the election of the first respondent. The first respondent, no doubt, admitted twenty three public meetings, as indeed he was bound to do in view of the return of expenses filed by him, but he did not state at any time, until he came in the witness box after the closure of the evidence of the petitioner, as to which were these twenty three public meetings and when and where they were held. The petitioner set out in the particulars regarding paragraphs 20(2) and 24 of the petition, furnished by him pursuant to the order of the learned Trial Judge dated 6th August, 1971, the dates and places of the public meetings where the allegations contained in the poster annexure 'A' were orally repeated by the first and fifth respondents and these particulars included reference to several public meetings which did not form part of the twenty three public meetings ultimately admitted by the first respondent, and yet the first respondent did not in his reply to the particulars deny that any of these public meetings were hold by the respondent, but merely contented himself by stating vaguely and evasively that "the correctness of the statements made against paragraph 20(2)(ii)" was denied. It is apparent that though more than twenty three public meetings were held by the first respondent the first respondent had not yet made up his mind as to which twenty three out of these public meetings he should admit. If in fact only twenty three public meetings were held and the particulars furnished by the petitioner included other public meetings, the first respondent would have promptly come out with an assertion that such and such public meetings alleged by the petitioner were not held.
But he could not and did not particularize any such public meetings and deny them.
273 It is also significant to note that when the petitioner in a rather curious menoeuvre summoned the first respondent to produce certain documents, the first respondent stated that he did not have any list of public meetings held in connection with his election and he did not have any record showing "the places where they were held including dates, names of the speakers who addressed or were to address" such public meetings. The first respondent also stated in cross examination that he had no record with him in support of his statement that there were twenty three public meetings. It is rather strange and difficult to believe that the first respondent should not have any record of the public meetings held by him in connection with his election. If the first respondent did not have any such record, how could he in his evidence give with any definiteness or certitude the dates and places of the twenty three public meetings admitted by him. It is apparent that the first respondent refused to produce the record of the public meetings under the pretext that he did not have any such record, because he did not at that stage, before the evidence of the petitioner was fully disclosed to him, wish to commit himself to any specific public meetings and the record, if produced, would have gone against him and showed that many more than twenty three public meetings were held by him. The non-production of the record must result in an adverse inference being drawn against the first respondent.
There is also another circumstance which deserves to be noted at this stage. The first respondent was summoned by the petitioner to produce inter alia applications for permission to hold public meetings made by him or on his behalf or for his benefit by any of his workers or election agents or other agents and in answer to this summons he stated that he did not make any such application nor was any such application made on his behalf or for his benefit by any of workers, election agents or other agents. The first respondent added that Dr. Roshan Lal made "applications for permission to the authorities as President of the Delhi Sadar District Congress Committee". it is obvious from these statements that until this time the first respondent had not thought out and formulated his defence in regard to the public meetings. The first respondent wanted to leave open an exit in case the petitioner was able to show that more than twenty three public meetings were held and he, therefore, deftly and subtly threw out a veiled suggestion implying that the public meetings were held by the Delhi Sadar District Congress Committee. This attitude of the first respondent betrays an anxiety to hold back the true facts in regard to the public meetings.
It may also be noted that even in the cross-examination of the petitioner and his witnesses, the first respondent did not put forward his case as to which were the specific public meetings held by him in connection with his election and which were not. It was only after the evidence on behalf of the petitioner was closed and the first respondent knew what exactly was the case of the petitioner, that he for the first time in his evidence particularised twenty three specific public meetings admitted by him. This strategy was adopted obviously with the object that 274 the twenty three public meetings named by the first respondent should fit in with the unimpeachable documentary evidence which might be produced by the petitioner and his witnesses and should not be falsified by such evidence.
With these broad general observations we now turn to consider the oral and documentary evidence in regard to the public meetings of the first respondent. The first respondent in his evidence admitted the following twenty three public meetings and accepted financial responsibility for them :
1.23-2-71 Malka Ganj 12. 25-2-71Narayan Mark 2.19-2-71 Roshanara Road 13. 15-2-71Chowk Tatu Shah 3.16-2-71 Ghanta Ghar Bagichi Tatu ShahSubzi Mandi 14.18-2-71Kasab Pura 4.2-3-71Clock Tower 15.20-2-71 Chowk Bara Tooti Subzi Mandi 16.21-2-71Deputy Ganj
5. 24-2-71 Chhe Tooti in Paharganj. 17.21-2-71Telewara 6.1-3-71Chowk Chhe Tooti 18. 24-2-71 Teliwara
7. 22-2-71 Chuna Mandi 19.13-2-71Chowk Kishan Ganj
8. 19-2-71 Tel Mandl 20.1-3-71P. Block, Andha 9.2-3-71 Chowk Lachman Puri Mughal
10. 25-2-71 Katra Karim 21.16-2-71K. Block, Andba Ram Nagar Mughal 11.2-3-71Chowk Nimwala 22.23-2-71 Nagia Park Nabi Karim 23.24-2-71 In front of Birla Mills.
These were the twenty three public meetings for which, according to the first respondent, furnishings and electric equipment ware supplied by Tandon Tent & Furniture House, Saini Electric Works and Aggarwal Tent House. The question is whether any further meetings were held in connection with the election of the first respondent. To establish that many more public meetings than twenty three were held to promote the election prospects of the 'first respondent, the petitioner led considerable oral as well as documentary evidence.
We shall presently examine this evidence, but before we do so. it would be convenient to dispose of two objections of a preliminary nature raised on behalf of the first respondent.
The first respondent urged that though the petitioner at one time contended that about forty to fifty public meetings were held in connection with the election of the first respondent, he did not adhere to this claim in the course of the arguments before the learned Trial Judge and confined his claim only to nine public meetings in addition to the twenty three public meetings admitted by the first respondent, and therefore, it was not now open to him in the present appeal to contend that any further public meetings were held by the first respondent over and above the nine claimed before the learned Trial Judge. This objection is, however, untenable 275 because it is clear from the judgment itself that the petitioner could not have confined his claim to the nine public meetings referred to by the learned Trial Judge and the learned Trial Judge was obviously under some misapprehension when he made observation to that effect in the judgment. Out of these nine public meetings, there were six which were included in the twenty three public meetings admitted by the first respondent and if that be so, it is difficult to imagine how the petitioner could have claimed them as being in addition to these twenty three public meetings. The petitioner could not possibly have confined his claim to these nine public meetings, when out of them, six were those which were admitted by the first respondent, and could not, therefore, be "in addition to the admitted public meetings". In fact as the subsequent discussion in the judgment shows, the learned Trial Judge actually proceeded to consider the evidence of the police officers and the officers belonging to the CID which was led on behalf of the petitioner for the purpose of proving various other public meetings in addition to the nine referred to by the learned Trial Judge and held, on a consideration of this evidence, that none of 'these public meetings claimed by the petitioner was established. This exercise would have been wholly unnecessary if the petitioner had given up his claim in regard to these public meetings and confined his argument only to the nine public meetings referred to by the learned Trial Judge.
It was then contended by the first respondent in a last desperate attempt to thwart an inquiry by this Court into the number of public meetings, that the petitioner had given particulars of only thirty three public meetings in compliance with the order made by the learned Trial Judge dated 6th August, 1971 and it was, therefore, not open to him to claim that any further public meetings were held by the first respondent and his argument should be confined only to the thirty three public meetings specified in the particulars. This argument of the first respondent is also futile. It is clear from the particulars furnished by the petitioner pursuant to the order dated 6th August, 1971 that the particulars of thirty three public meetings were given by the petitioner under paragraphs 20(2) (ii) and 24 and not under paragraph 25 of the petition, The petitioner had alleged in paragraphs 20(2) and 24 that the allegations contained in the poster annexure 'A' were orally repeated by the first and fifth respondents at various public meetings and the petitioner was, therefore, required to give particulars of such public meetings. These particulars were given by the petitioner specifically in reference to paragraphs 20(2) and 24 and they had nothing to do with the allegations in paragraph 25. So far as paragraph 25 is concerned, the only particulars which the petitioner was required to furnish were "details of the items or heads of expenses incurred by respondent No. 1", and the petitioner accordingly gave items or heads of expenses under the heading "Paragraph 25(1) of the petition". The petitioner was not required and did not give particulars of the public meetings held by the first respondent at which expenses were incurred or authorised by the first respondent. There is nothing, therefore, in the particulars which debars the petitioner from agitating as to what was the actual' number of public meetings held by the first respondent.
-M255 Sup. CI/75 276 The area of Sadar Parliamentary constituency was comprised within the jurisdiction of four different police stations, namely, Roshanara Road, Pahargunj, Subzimandi and Sadar Bazar. The Station House Officers pasted at these four police stations were summoned by the petitioner to give evidence as regards the public meetings held within their respective jurisdictions. Khemraj Dutt (P.W. 1) was the first witness called on behalf of the petitioner. He was the Station House Officer at Roshanara Road police station and he deposed from the records in his possession and filed a list PW 1/1 showing that two public meetings were held by the first respondent within the jurisdiction of his police station, one at Nagia Park on 23rd February, 1971 and the other near Birla Mills compounds on 24th February, 1971.
Both these public meetings are included in the twenty three public meetings admitted by the first respondent and we need not, therefore, dwell on the evidence of this witness.
The next witness who gave evidence on behalf of the petitioner was Ramesh Chand, Station House Officer from Sadar Bazar Police Station (P.W. 6). He prepared from the records in his possession a list showing the public meetings held within the jurisdiction of his police station and filed it in court as Ex. PW 615. The entries in this list have been the subject matter of controversy between the parties and we ,shall, therefore, refer to these entries in some detail. The list was broadly in three parts. One part expressly referred to public meetings held by the New Congress, the second part to public meetings held by Jansangh and the third part which was headed "Others", to certain other public meetings. There were nine public meetings set out in the first part as having been organised by the New Congress. The first eight were those included in the twenty three public meetings admitted by the first respondent. The ninth was a public meeting at Idgah Road which was addressed by the Prime Minister. We shall deal with the Idgah Road meeting separately as it stands in a different category by itself. We are not concerned with the public meetings held by the Jan Sangh and need not, therefore, refer to the second part. The third part was headed "Others" and in this part eight public Meetings were set out as having been held on different dates. The question which was keenly debated before us was as to what was the meaning of the heading "Others". The contention of the first respondent was, and that was a contention which found favour with the learned Trial Judge and on which large part of his judgment on this point rested, that the heading "Others" signified that the public meetings enumerated under that heading were held by individuals or political parties other than the Congress and the Jan Sangh. The Petitioner, on the other hand, urged that the heading "Others" was intended to indicate only that the public meetings referred to therein were other public meetings over and above those set out in the first and second parts and since the records did not show which were the political parties which held them, they were shown in a separate category under this particular heading. The word "Others" was not intended to convey that these public 'meetings were of others, that is of individuals or political parties other than the Congress and the Jan Sangh. We think that the meaning sought 277 to be given by the petitioner is correct and it must be preferred to that canvassed on behalf of the first respondent. The list was admittedly prepared by Ramesh Chand and he explained in his evidence in so many terms as to what he meant by the heading "Others". He stated in his evidence, obviously referring to the public meetings set out in the third part, that "the name of the party is not mentioned against Some of the meetings". These public meetings may have been held by the Conggress or the Jan Sangh or any other individual or political party. The records from which the list was prepared did not show which were the political parties which held these public meetings and they were, therefore, classified under the heading "Others". Ramesh Chand did not say that these public meetings were held by some individuals or political parties other than the Congress and the' Jan Sangh and that is why they were included under the heading "Others" nor was any such suggestion made to him in cross-examination. The explanation given by Ramesh Chand that the names of the political parties which held these public meetings were not known and hence not mentioned in the list was not challenged on behalf of the first respondent in cross-examination and if this explanation is to be accepted, as it must be, it is apparent that these public meetings were subsumed under the heading "Others" because the records did not show which were the political parties which held them. The word "Others", meant merely "other meetings" and not meetings "of others", that is of individuals or political parties other than the Congress and the Jan Sangh. We cannot, therefore, say that merely because a particular public meeting finds a place in the third part under the heading "Others", it could not be a public meeting of the Congress. The third part would show that the public meetings there ref
