GADAKH YASHWANTRAO KANKARRAO v. E.V. ALIAS BALASAHEB VIKHE PATIL AND ORS.

GADAKH YASHWANTRAO KANKARRAO A v. E.V. ALIAS BALASAHEB VIKHE PATIL AND ORS.

NOVEMBER 19, 1993

B

Representation of the People Act, 1951-Sec: 123(4)-Conupt Prac· tice-R.equirements of-Expression 'statement offact'-Meanin~nus of proof

Appreciation of evidenct-Standard of proof of a quasi-criminal charge c -Proof required as in a criminal charge-Strictness of pleadings-Liberal construction not the proper approach-Election to be contested on positive vote-Purity of elections-Duty of Courts.. ·

Offending statement of fact which is falsely published by any other D person-Consent of candidatt-Standard of proof

Statements relating to payment by candidate to a political party's fund-- Contribution prior to becoming a candidate whether amounts to corrupt practice u/s 123 (4)-Held, No. E Allegation of payment to a candidate for shifting to another constituen- cy-Statement of fact proved to be f alse-l'ub/ication in newspaper-Wltether amounts to corrupt practice-Held, yes.

Statement of a proposal to distribute bicycles to participants in a rally-- Statement of likelihood of distribution of sarees, dhoties, liquor and cash in F constituency-Expression of appreltension-Wltether constitutes corrupt prac- tice-Held, No.

Hiring of workers for election campaign-Not an offending statement of fact u/s 123 (4). G Statement that a candidate was likely to give money for repair of Cltawdies and renovation of temples-Not a disparaging act relating to per- sonal character or conduct.

Statement made advising voters to accept whatever was offered by a H 731

732 SUPREME COURT REPORTS. [1993) SUPP. 3 S.C.R.

A candidate-Statement to cast vote uninfluenced by extraneous consideration-- Whether constitute conupt practice-Held, No.

General Statements made by Chief Minister projecting his plllty's can- didate as upholder of morality and honesty-Exho1tation made to people to vote for his pa1ty's candidate-Cannot constitute statements offact relating to B character and conauct of opposite candidate-Not a conupt practice.

Section 123(6}-<:eiling on expenditure-Prescription on ceiling fixed only in respect of expenditure by candidate-Expenditure incurred by party outside the net of legal sanction-Lacuna in law-l'arliament to fill.

C Section 101 (b )-Election-Invalidation to election of returned can- didate void for commission of corrupt practice-Candidate securing next highest number of vote~Whether can be declared elected.

Section 116-A-Appeaf-Scope of. D ELECTIONS-Election campaign-Trend of-Duty of political par- ties-Election to be contested on positive vote-Shift in election campaign in positive direction emphasised.

For the Lok Sabha seat from Ahemdnagar Parliamentary Con· E stituency, the returned candidate, the appellant was declared elected against his nearest rival, the election petitioner.

The election petitioner filed an election petition praying that the election of the appellant be declared as void and the election petitioner be declared to have been duly elected from that constituency. The validity of the election was challenged on the grounds that the appellant had com· mitted the corrupt practice u/s 123(4) of the Representation of the People Act; that the appellant had made certain false statements in his speeches relating to the personal character and conduct of the election petitioner attributing the use of corrupt methods by him, with a view to prejudice the prospects of his election which was published in the daily newspaper; that in the public meetings, the then Chief Minister of Maharashtra had made similar statements relating to the personal character of the election petitioner, in the presence of and along with the appellant; that these statements amounted to corrupt practice u/s 123(4) of the Act on 'lccount of which the appellant's election was void and the then Chief Minister was liable to be named in accordance with Section 99 of the Act.

KANKARRAOv. B.V.PATIL 733

After the evidence was recorded and the appellant had also been examined, the High Court issued a notice u/s 99 to the then Chief Minister of Maharashtra to show cause why he should not be so named. The then Chief Minister challenged the issuance of this notice by a Special Leave Petition, but the same was dismissed requiring him to raise his objections in the first instance at the trial of the election petition in the High Court B itself. He 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. However, he denied the commis- sion of any such corrupt practice as did the appellant at the trial of the election petition. c The High Court allowed the election petition and declared the elec- tion of the returned candidate to be void making a further declaration that the election petitioner was duly elected. The High Court also named the then Chief Minister of Maharashtra for commission of the corrupt prac- tice u/s 123(4) of the Act alongwith the returned candidate. It was held that the returned candidate and the Chief Minister did make supplementary statements of each other stating that the petitioner was to spend Rs. 3 crores for his election, that the had paid Rs. SO lakhs to Janata Dal, Rs. 20 ~khs were paid to the Janata Dal Candidate for withdrawing from one constituency and to contest from another constituency; that the petitions was to take out rally of 5000 cycles and distribute the cycles amongst the participants, that the petitioner was to spend for repairs of Chawdies and had spent Rs. 5,000 for repair of Chawdies. It was also stated that the petitioner was to distribute sarees, dhoties, liquor amongst the workers with a view to attract them and it was advised that the voters must accept them and vote for Congress. The High Court concluded that these state- ments would touch upon the personal character and conduct of the petitioner.

These appeals were filed u/s 116A of the Act, against the judgment of the High Court. The returned candidate challenged declaration of his election to be void and the further declaration of the election petitioner to have been duly elected. The respondent Nos. 5 & 6 had challenged merely the further declaration of the petitioner to have been duly elected, in their appeals. The notice filed appeal against naming him for commission of the corrupt practice u/s 123(4) along with the returned candidate. H

734 SUPREME COURT REPORTS {1993) SUPP. 3 s.c:R.

A The appellant, returned candidate atleged that he did not make any of the statements attributed to him and at any rate none of those state- ments amounted to the corrupt practice u/s 123 (4) of the Act. The noticee, the then Chief Minister contended that the statements attributed to him, which did not include the statement of payment of Rs. 50 lakhs to the election fund of Janta Dal and the payment of Rs. 20 lakhs to the Janta B Dal candidate for shifting to another constituency, did not satisfy the requirements of Section 123(4) and tlierefore, did not amount to the corrupt pra_ctice thereunder; that apart from there being no ground to declare the election of the returned candidate to be void, no ground had . been made that the election petitioner to have been duly elected; that the c making of these statements attributed to him or at least the disparaging part thereof by him was not proved by any acceptable evidence and at any rate all the requirements of section 123(4) were not proved to hold that the -corrupt practice was committed by the returned candidate; that the charge of commission of a corrupt prac~ice being of a quasi-criminal . D nature, the standard of proof applicable was ofa.·cri~inal charge and not merely that of preponderance of probabilities of a ciVil ease; and that the statements which were made were only to caution the electorate against possible misuse of money power. On the point relating to the manner of appreciation of evidence in such a case, the appellant submitted that every statement reflecting on the personal character of a candidate does not amount to a corrupt P.ractice since it does not prejudice the election in the prevailing political climate; 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 pravaling electoral scene since they are not taken seriously by the voters due to the falling ethical standards; that political 11"aders have a duty to educate the electorate against possible malpractices which are now not uncommon during the election and making , of such statements was desirable and that every allegation against a candidate of his committing a corrupt practice was not moral turpitude adversely affecting the personal character of the candidate to constitute the corrupt practice u/s 123(4) of the Act; that every statement was not a 'statement of fact' and, therefore, a statement made about ·future ap- prehension or opinion of the maker, did not fall within the ambit of this expression and that most of the statements attributed to the returned candidate and all the statements attributed to the then Chief Minister did

. KANKARRAOv. B.V.PATIL 735

not constitute 'Statement of fact' within the meaning of this expression in A Section 123(4); and that all these statements were within the permissible electoral practice, necessary for education of the electorate.

The respondent contended that the expression 'statement of fact' had 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, B all the statements attributed to the appellants fell within the meaning of this expression.

The notice submitted that to constitute corrupt practice uf!; 123(4), the consent of the returned candidate to the making of these statements by the then Chief Minister was also essential which had neither been c pleaded nor proved; that the fact of candidate's presence at the time when these statements were alleged to have been made by him in the public meeting was not sufficient to prove the consent of the returned candidate requisite for constituting the corrupt practice u/s 123(4) and that the statements attributed to the notice did not constitute corrupt practice u/s D 123(4) of the Act as the requirements of that provision were not satisfied.

Disposing of the matter, this Court

2. 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. (765-D] G Surinder Singh v. Hardial Singh & Ors., (1985] 1 SCC 91 and Megraj Patodia v. R.K Bir/a & Ors., [1971] 2 SCR 118, relied on.

Samant N. Balakrishnu etc. v. George Fernadez & Ors. etc, [1969] 3 SCR 603; Azhar Hussain v. Rajiv Gandh~ [1986] Supp. SCC 315; Lalit H

736 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R ..

A Kishore Chatwvedi v. Jagdish Prasad Thada & Ors., (1990] Supp SCC 248; Dau/at Ram Chauhan v.Anand Slza1111a, [1984] 2 SCC 64 andM.J. Zakha1ia Sait v. T. M. Mohammed & 01:1·., [1990) 3 SCC 396, referred to.

3.1 The plain meaning of Section 123.(4) indicates that it is not every statement but only 'a statement of fact' to which the provision applies, that the statement of fact should be false; that such statement should be made believing it to be false or at least not true; that it should relate to the personal character or conduct etc. of any candidate; and it should be reasonably calculated to prejudice the prospects of that candidate's elec- tion. tJnless all these requirements are satisfied, the state~ent does not constitute corrupt practice under Section 123(4) of Act howseever un· desirable, morally or ethically, the making of that statenient may be otherwise. [775-H, 776-A]

3.2 Every statement of fact in relation to the personal character or conduct of any candidate does not amount to a corrupt pr.actice under Section 123(4) unless all the requirements of the provision are satisfied, notwithstanding the fact that such a statement may be defamatory i• 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 ·F be false or did not believe it to be true. Irrespective of the quantum of I 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 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 grater 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. [766-B·C·D·E]

KANKARRAO v. B.V. PATIL 737

3.3 The primary requirements of Section 123(4) are that the state- A ment 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'. The burden of proving the satisfaction of all these requirements is no 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 whereafter 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 that 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. (766-F-G-H; 767-A-B]

3.4 For constituting the C()rrupt practice in Section 123(4), all the requirements thereof must be satisfactorily proved. A statement o( 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 ofmaking,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). A 'statement offact' can be· proved to be 'false' only if it relates to an event which bas happened and not to a F 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. 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 G another requirement of Section 123(4) is that the statement o( fact made should be reasonably calculated to prejudice the prospects of that candidate's election. This further requirement cannot be satisfied by mere- ly stating a likely apprehension for the future and if the even does not happen, this requirement cannot be tested. It is a different matter if the H

p. 738

A 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. (768-A-B-C-D-E]

Kumara Nand v. Brijmohan Lal Shamia, (1967) 2 SCR 127; Nepal Chand Roy v. Netaji Chandra Das & Ors., (1971) 3 SCC 303; T.K. Gangi v. B M. C. Anjaneya Reddy & Ors., 22 E.L.R 261; Gurnji Shrihari Baliram Jivatode v. Vithalrao & Ors., (1969) 1 SCC 82; Ram Chand Bhatia v. Hardayal, [1986) 1 SCR 177; Inder Lal v. Lal Singh, (1962) Supp. 3 SCR 114 and Sheopat Singh v. Ram Pratap, (1965) 1SCR175, relied on.

C 3.5 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 D given to the expression 'statement of fact' is capable of satisfying the other requirements of the provisions. 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. (767-F-G-H]

E Salmond on juris.prudence, 12th Edition, p.69, referred to.

4. 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 F consent may not be available. (771-F]

B.R. Rao v. N.G. Ranga, (1970) 3 SCC 576; Narasingh Charan Mohan- ty v. Surendra Mohanty, (1974) 2 SCR 39 and Samant N. Balakrishna etc. v. George Fernandez & Ors. etc., (1969) 3 SCR 603, relied on. G 5.1 The allegations made against the appellant was that he stated that the election petitioner had an election budget of Rs. 3 crores. The 9uestion in the present case related only to the corrupt practice specified in sub~.sec- . tion (4) of Section 123 and not to the corrupt practice under sub-section (6) ... thereof relating to the incurring or authorising of expenditure in contraven- H tion of Section 77 of the Act. Therefore the only point was whether the

KANKARRAO v. B.V. PATIL 739

statement that the election petitioner had an election budget of Rs. 3 crores A was a false statement of fact. So far as the means of the candidates was concerned, both appeared to be considerably affluent. The electorate must have been well aware of their means and, therefore, this was a neutral circumstance which by itself had no significance bearing on the other statements attributed to the appellant. (776-D-E-G-H; 777-A] B 5.2. The statement of the appellant alleging payment of Rs. 50 Lakhs by the election petitioner to Janata Dal election fund did not necessarily imply that this payment was for shifting its candidate to another con- stituency particularly when no other details were given. This statement had, therefore to be examined as the allegation of contribution to the C election fund of a political party. There was no allegation that this payment was alleged to have been made at any time after the election petitioner had become a candidate at the election. It was doubt if the mere aJJegation of contribution to a political party's election fund prior to becoming a can- didate can amount to the corrupt practice under Section 123(4) of the Act. (777-H; 778-A-B] D 5.3 The requirement of Section 123(4) that this statement about payment of Rs. 20 lakhs by the election petitioners to the Janata Dal candidate for withdrawing from a constituency and shifting to another constituency was a statement of fact' which was 'false' was duly proved. E The publication of these statements was by the appellant himself in a public meeting and in the interview given for being published in the Maharashtra Times, and therefore, the further requirement of its publi- cation as required by Section 123(4) was also proved. This false statement of fact was in relation to the personal character or conduct of the election petitioner and it did not relate merely to his political character or conduct. F The statement was reasonably calculated to prejudice the prospects of the election petitioner's elections inasmuch as it conveyed that he had bribed the Janata Dal candidate by payment of Rs. 20 Lakhs to withdraw his candidature from this constituency for his benefit. (778-F-G-H; 779-A]

5.4 The election petitioner had denied the payment of Rs .. 20 lakhs G and also asserted that the appellant while maldng the statement did not believe it to true. Even though the burden on the pleadings to prove the satisfaction of this requirement was on the election petitioner yet the initial burden of leading evidence of that fact was discharged shifting the burden of rebutting the same to the appellant. In his deposition the appellant did H

p. 740

A not believe in the truth of the information given to him about the payment of Rs. 20 lakhs by the election petitioner to a candidate and the latter withdrawing from the COJ!Stituency for that reason. In such a situation, the appellant's admission in his cross examination that he did not believe the allegation to be true had the effect of reinforcing the petitioner's assertion to this effect instead of negativing it. It could not, therefore, be doubted B that the appellant did not believe in the truth of this allegation made against the petitioner when he said in his speech and interview that Rs. 20 lakhs had been paid by the petitioner to the Janata Dal candidate for withdrawing from this constituency and shifting to another constituency. All the requirements of Sectio~ 123(4) were satisfied and the false state- C ment of fact made to this effect by the appellant in respect of the personal character and conduct of the election petitioner amounted to the corrupt practice under Section 123(4) of the Act. This along was sufficient for declaring the election of appellant to be void. [779-E-F-H; 782-A-B; 785-F-G] D 5.5. The expression of a mere apprehension which did not come true apart from not being a 'statement of fact', did not satisfy the other requirements of Section 123(4). The statement of a proposal to take out a rally of 5000 bicycles and then distribute the bicycle to the participants related to the f~ture and was·at best merely the expression of an apprehen- E sion. No one had even suggested that such a rally was taken out at any time during the election campaign by the petitioner. It was an apprehen-

- sion which did not materialise and, therefore, there was no reasonable .likelihood of any impact thereof on the mind of the voters. Similar was the stntement alleged to have been made of the likelihood of distribution of sarees, dhoties, liquor and cash in the constituency. No one had said that F such a distribution of any of these articles was made by the petitioner during the election campaign. Such a statement, if made, was therefore another apprehension which did not come true and, therefore, could not affect the mind of the voters. [786-B-C-D]

G 5.6. Mere hiring of worker for election campaign is not an offending statement of fact under Section 123(4). Unless the hiring of workers by payment of money resulted in exceeding the permissible maximum limit of election expenditure to constitute the corrupt practice under Section 123(6), this fact along would not constitute the corrupt practice under H Section 123(4). [786-E-F-G]

KANKARRAOv. B.V.PATIL 741

S.7. Mere repair of Chawdies or renovation of temples is not a dis- A paraging act relating to the personal character or conduct of anyone unless the further requirements of section 123 (4) are proved including the require- ment of its impact on the mind of the electorate that it was reasonably calculated to prejudice the prospects of that candidate. [787-B-C] B 6.1. The statements attributed to the then Chief Minister of Maharashtra in the meetings et f acie did not amo•J~t to 'statements of fact' relating to the personal character or conduct of the petitioners being only the expression of his opinion based on apprehensions about the likely future conduct of the petitioner or relating only to his political character . which did not fall within ambit of Section 123(4) of the R.P. Act. The C statement of the Chief Minister that he had no objection to acceptance of the articles if they were distributed did not fall within the net of Section 123(4). The statement was an exhortation to the electorate to support morality and honesty to belittle and destroy the force of wealth and ego opposed to it. This was merely an exhortation of the speaker to support morality and honesty against money power and ego. These general state- ments made projecting his party's candidate as. ~e upholder of morality and honesty against the forces guided by money power and ego amounted to his opinion of the kind of representation made by the two candidates irrespective of the correctness or otherwise of that opinion. The exhorta· tion made to the people to vote for his party's candidate as the upholder of morality and honesty could not be treated as statements of fact relating to the character and conduct of the election petitioner amounting to vilification of his character or conduct. Thus, none of the statements of the Chief Minister constituted the corrupt practice under Section 123(4) of the R.P. Act. The stateuaents wherein he said that the petitioner chose to contest from the South constituency being a famine prone region wherein· the people were poor for the purpose of purchasing their self respect and that the petitioner had stated activities to win the election by efforts of interested parties by playing their game of purchasing sel~ respect of the poor people did not come within Section 123(4). In one statement, he said that money alone could not be an important motivation in the election and ·a there was need of ideology, policy, programme and morality. He then added that it was wrong to give up morality and leave the party when one's wish was not fulfilled and to join hands with other parties. This was in the background of the petitioner leaving the Congress (I) Party when the party ticket was not given to him and he contesting the election with the help of H

p. 742

· A other parties. The suggestion was that abandoning the party and switching of loyalty was not morally and ideologically correct. In the admitted background of the petitioner, this comment was on his political morality and character because of his leaving the Congress (I) Party on denial of ticket to him to and contesting against the Congress (I) Party's candidate. B This statement did not relate to the personal character or conduct of the petitioner but merely to his political character and morality. This did not fall within Section U3(4). [788·F·G; 789·D·G·H; 790·A·G]

Manohar Joshi v. Damodar Talyaba & Ors., (1991) 2 SCC 342, referred to. c 6.2. Some or the statements, made by the Chief Minister even thQugh not amounting to corrupt practice under the enacted law, did not measure upto the desired level or electioneering at the top echelon or political leadership to set trend for a healthly election campaign. His suggestion to the voters to accept monies etc., if distributed by a candidate, without being inftuenced thereby as a means or propagating socialism exhibited a bizarre perception or socialism. It was shocking enough that appellant said so but far worse to find the Chief Minister endorse that view. Intended as sarcasm It depicted poor tasb!. Ir this be the level of election campaign at the top, It ls bound to degenerate as it descends to the lower levels. Some portions or the speeches or the Chief Minister were indeed high precept but the electorate would have benefited more by knowledge or the track record or the preachers' practice or the same. There was no such attempt. The degree or responsibility and the level or electioneering excepted or the top leadership was wanting in these speeches. Ir probity in public life is to be maintained and purity or elections is not a myth or mere catch-phrase, a higher level of electioneering is expected at least at the highest level of political leadership. This shift in the election campaign has, therefore, to be in the positive direction to enable the electorate to case its positive vote instead of the negative vote by rejecting those with greater demerits. This duty is cast more heavily on the senior leaders of all the political parties to ensure that the election campaign does not degenerate into a campaign or vilification, which may tend to promote violence during elections and lead to criminalisation of politics. The present trend of election campaign must be reversed to make the democracy more meaningful by ensuring purity of elections. (792-C·D·E; 791-H; 792·A·B] .

. KANKARRAOv. B.V.PATIL 743

7.1 If purity of election is the essence of democracy and providing for inv~lidation 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 the democracy of which purity of elections ls a necessary concomitant, it ls the duty of the courts to appreciate the evidence and construe the law ln a manner which would subserve this higher purpose and not even imperceptibly facilitate accep· tance, much less amnnance, of the falling electoral standards. For democracy to survive, rule of law must prevail, and lt Is necessary that the best available men should be chosen as people's representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values who win the el~tions 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 availability and credibility for want of requisite financial support should be able to re-enter 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 supports of money power. Apart from the other adverse consequences, the growing influence or money power has also the effect or promoting criminalisation of politics. [761-F-G-H; 762-A-B-C] F 7.2 The existing law does not measure upto the existing realities. The ceiling on expenditure is faxed only in respect or 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 or ceiling on expenditure by a candidate is G 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 H

p. 744

A indirect methods for its circumvention and subversion of the law, accept· ing 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. [762-D-E-F]

7.3 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. The functioning of democracy depends on the quality of the men chose of 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. (762-H; 763-A·B]

7.4 Past experience had shown that even the illiterate section of the electorate was educated enough to remain uninfluenced by power and pelf. D This it had shown more than once, by rejecting the high and the mighty in power when it felt that they had filed to discharge their true obligation. Even if the said statements or any of them did not constitute the corrupt practice u/s.123(4), it only meant 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 E to say that a statement does not constitute corrupt practice but entirely different to suggest that it is a desirable electoral practice fo~ing a part of the programme for education of the electorate which can oniy \ead to a further degeneration of the wanting morality in the electoral scene, when the felt need is for curbing any such tendency to ensure purity of election&. r F [763-F-G-H; 764-A·B·CJ

8. The mere fact that the election petitioner secured the next highest number of votes after the returned candidate was not sufficient to declare ' '

him elected on the conclusion that the election of the returned candidate was void for commission of a corrupt practice. To justify this relief, it mu!it G heve been held that but for votes obtained by the returned candidate by the corrupt practice committed u/s 123(4), the petitioner would have obtained a majority of the valid votes. The High Court proceeded on an erroneous assumption that the election of the. returned candidate being void the petitioner who polled the next highest number of votes must be declared to have been duly eiected. Relief granted under Section 101(b). of the R.P. Act H was unwarranted on account of the absence of the requisite evidence to

KANKARRAOv. B.V.PATIL[VERMA,J.] 745

support the grant of this further declaration in the present case. A [794-D; 793-E; 794-E] Ko1111app11 Rudrappa Nadgouda v. Vishwanath Reddy & Anr., [1969) 2 SCR 90, relied on.

9. The scope of an appeal under Sedion 116A of the Representation B of the People Act is an wide as in a civil appeal, and this court has to exercise the same jurisdiction as is exercised in an appeal against the original judgment of the High Court. [765-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2115 of ~ c From the Judgment and Order dated 30-3-1993 of the Bombay High Court in Election Petition No. 2 of 1991.,

WITH D CA Nos. 2116/93, 2444/93 and 1758/93.

V.N. Ganpule, Ram Jethmalani, Raja Bhosale, Ashok H. Desai, K. Parasaran, V.R. Manohar, P.P. Rao, V.A. Bobde, Satish K. Agnihotri, Ms. Punam Kumari, Ms. Lata Krishnamurthy, Ravinder Kumar, Ms. Nandini Gore, Vasant Kotwal, S.B. Talekar, R.N., Karanjawala, P.K. M1Jiid.., E Suruchi Agarwal, Ms. M. Karanjawala, Harsh Desai, Pallav Sisodia, K.K. Lahir~ P.N. Banerjee, K.J. JohQ, G. Umapathy, P.R. Tiwari, A Raghunath, Ms. Pragati Shukla, S. Ganesh, A~. Khanwilkar" Viswajit Singh, Prashant Kumar, E. Iaher, V. Dhoni, V.B'. Mishra, S.B. Mhase, R.F. Nariman, Vijay Kumar, San''lsh Paul, M.J. Paul and Mrs. V.D. Khanna for the appearing F parties.

Intervenor in person in C.A. No. 2115/93.

The Judgment of Court was delivered by

VERMA, J. These appeals under Section 116A of the Representation G of the People Act, 1951 {hereinafter referred to as "the R.P. Act") are against the judgment dated 30th March, 1993 in Election Petition No. 2 of 1991 E. V. Alia Balasaheb Vikhe Patil v. Gadakh Yashwantrao Kankanao & Ors., passed by A.A. Halbe, J. of the Bombay High Court at the Auran- gabad Bench. By the impugned judgment, the election of Gadakh Yash- H

746 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R. ·

A wantrao Kankarrao as a member of the Lok Sabha from 39 Ahmednagar Parliamentary constituency held in June 1991 has been set aside for com- mission 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 Yashwantrao 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. 2116of1993 is byDeshmukh Bhagwan Rangnath (Respondent No. 5 in th~ 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 No. 6 in the Election Petition) against declaration of Vikhe Patil to have been duly elected. Civil Appeal No. 1758 of 1993 is by Sharad Chandra 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. D The material facts are now stated: Programme for election ,of a · member for election of a member of the Lok Sabha from 39 Ahmednagar Parliamentary Constituency known locally as Ahmednagar South con- stituency was as under :

E "l. Issuance of Nomination papers From 19th April, 91 to 26th April, 1991.

2Copy pinpoint2. Last Date of Acceptance of 26th April, 1991. Nomination Papers.

3Copy pinpoint3. Scrutiny and Publication of list of 27th April, 1991 F candidates •,.

4Copy pinpoint4. Withdrawal and Publication of 29th April, 1991 final list of candidates.

5Copy pinpoint5. Allotment of symbols 29th April, 1991 after 3.00 p.m.

G 6. Duration of Propoganda 30th April, to 21st May, 1991.

7. Date of polling 23rd May, 1991.

8. Counting of votes and declaration 27th May, 1991 of results."

H HoweVer, due to the assassination of Shri Rajiv Gandhi, former prime

KANKARRAO v. B.V. PATIL [VERMA, J.] 747

Minister of India on 21st May, 1991, the remaining election programme A was modified by fixing 12th June. 1991 as the date of polling in that constituency and 16th June, 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 No. 1 and respon- . dents 2 to 10 in the election petition, were candidates. The polling took place on 12th June, 1991 and the result was declared on 16th June, 1991 B wherein Gadakh was declared elected having secured 2,79,520 votes against his nearest rival Vikhe Patil who secured 2,67, 883 votes.

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 C 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 30th April, 1991, Ahmednagar on 2nd May, 1991, Newasa on 3rd May, 1991 and in an interview given to a journalist on 10th May, 1991 which was published in the daily newspaper "Maharashtra Times" on 13th May, 1991. It was also alleged by Vikhe Patil that in the public meeting held at Newasa on 3rd May, 1991 and at Srigonda on 11th May, 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 p 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 liable 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 G 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.

Sharad Pawar challenged the issuance of this notice under Section H

p. 748

A 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 court Itself. Sh~rad 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 B denied the commission of any such corrupt practice as did Gadakh at the trial of tht" election petition.

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 declara- C tion 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 summerised in paragraphs 223 and 224 of the impugned judgment, which are as under : - D "From the discussion in the foregoing paragraphs, it has to be concluded that the respondent No. 1 and Sharz.d Pawar did made supplementary statements of each other. Those statements can be enumerated as below : - E (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 F constituency.

(4) Petitioner was to take out rally of 5000 cycles and distribute the cycles amongst the participants;

G (5) Petitioner was to spend for repairs of Chawdies and had sent Rs. 5,000 for repair of Chawadi at Ganganagar, Tq. Newasa;

(6) Petitioner was to distribute sarees, dhoties, liquor amongst the work~rs obviously with a view to attract them.

H (7) Voters must accept them and vote for congress.

KANKARRAOv. B.V. PATIL [VERMA,J.] 749 • These are the statements made by the respondent No. 1 and A 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 petitioners." B It i~ these conclusions and relief~ granted- on by basis which are challenged by the return~d candidate Gadakh and the notice Sharad Pawar, while respondent No. 5 Deshmukh Bhagwan Rangnath and respon- dent No. 6 Najan Rambhau Maruti have challenged merely the further declaration of Vikhe Patil to have been duly elected, in their appeals. C

At this stage, a gist of the alleged false statements relating to the personal character of Vikhe Patil attributed to Gadakh and Sharad Pawar 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 D Patil that Gadakh attributed to him the resort of corrupt methods for winning the election in his statements by stating the 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 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 particiI>ants in a bicycle rally to be taken E 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 Chawdies 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 p in the constituency to accept these things from Vikhe r'atil 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 J anata Dal · candidate. It may be noticed at this stage that combined findings against G Gadakh and Sharad· Pawar have been recorded by the High Court in paragraphs 223 and 224 of the judgmt;nt in respect of all the alleged statements including those relating to payments to the Janata Dal and the J anata Dal candidate even though there is no pleading or proof of such statements being made by Sharad Pawar. The application made by the H

p. 750

A 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 B dismissed by us as not pressed. The operative order made by the High Court is as under : -

"(i) The Election Petition is allowed.

(ii) The election of the respondent No. 1 Gadakh Yashwantrao c 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. D (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. E The respondent No. 1 shall pay the costs of Rs. 30,000 to the petitioner and likewise respondent No, 6 shall pay the costs of Rs. 5,000 to the petitioner.

(iv) Registrar to take action under section 103 of the Repre- F sentation 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 Speaker or the Chairman of the House of Parliament or the State Legislature, as may be found necessary. G (v) The petitioner E.V. @ Balasaheb Vikhe Patil is declared as a candidate duly elected from the above parliamentary con- stituency.

H (v!) Petitioner be refunded his security deposit."

KANKARRAO v. B.V. PATIL [VERMA. J.] 751

In these mat~ers, Shri Ashok Desai appeared for Gadakh; Shri K. A Parasaran for Sharad Pawar; Shri V.N. Ghanpule for Deshmukh Bhagwan Rangnath (respondent No.5 in the election petition); and Shri Ram Jeth- malani for Najan, Rambhau Maruti (respondent No. 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 B 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 C 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 o· Desai to contend that Vikhe Patil could not be declared elected. Shri Ram 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 a corrupt practice under Section 123(4) was committed either by Gadakh or Sharad Pawar E

The statements attributed to Gadakh and Sharad Pawar as constitut- ing 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 p these allegations, the particulars of these meetings and interview may be given. It may be mentioned that Gadakh was the candidate of the Congress (I) 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 30th April, 1991 at Sonai at which Gadakh had addressed the Congress G Party workers. The second meeting of the District Congress Committee was addressed by Gadakh at Ahmednagar on 2nd May, 1991. The third was a public meeting at Newasa on 3rd May, 1991 addressed by Gadakh as well as Sharad Pawar. The fourth was also a public meeting at Srigonda on 11th May, 1991 which was addressed by Sharad Pawar after he held introduced and welcomed by Gadakh. The speeches by Gadakh and H

752 SUPREME COURT REPORTS [1993} SUPP. 3 S.. C.h.

A Sharad Pawar at these meetings were also published in the newspaper. Apart from these meetings, an iP· erview was given by Gadakh on 10th May, 1991 to a Journalist Girish Kulkarni and that interview was published in the "Maharashtra Times'' 0f the 13th .May, 1991.

The averments in the election petition relating to the statements B 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 30th April, 1991, the first respondent had addressed a c meeting at village Soriai....... .

.......... Further he made a statement that the Petitioner had paid 20 lakhs of rupees for the candidate who was selected by J anata Dal Party for the Ahmednagar constituency to contest the election from Beed CC?nstituency. Respondent No. 1 further alleged that the D Petitioner was going to spend Rs. 3 crores for Petitioner's election. Respondent No. 1 also alleged that Petitioner has declared rate of Rs. 25,000 for defecting worker of village level and Rs. 50,000 for woi;ker of Tahsil............ The petitioner states that the state- ments mady by the first respondent that petitioner paid Rs. 20 E lakhs to the candidate of Janata Dal to withdraw from Ahmed- nagar Parliamentary constituency is false is known to first respon- dent as false 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 F 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 50,000 per worker of tahsil level is equally false. G The first respondent know and believe that it was false statement. The petitioner was indulging into an act of bribery for inducing Janata Dal candidate to withdraw from election. This statement relates to the personal character of petitioner ............................. .

H (para 9)

KANKARRAOv. B.V. PATIL [VERMA,J.] 753

............. The petitioner states that the first respondent made a A statement in the meeting dated 2nd May 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) B The Petitioner states that in the meeting addressed by the first respondent in the office of the District Congress Committee, Ahmednagar, on 2.5.1991, 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 Chawdi at Ganganager C area of Newasa tahsil. The respondent No. 1 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 not handed ovet any bicycle to anybody. The statemer.'I: made by the first D 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) E The Petitioner states that an Election meeting was held at· Newasa Bajartal on 3.5.1991, at 10.30 a.m. for the inauguration of propoganda. 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 F repairing of Chawdi. 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 G 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. Statement were repeated to the effect that the H

p. 754

A 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 state- ments were false. Shri sharad Pawar Knew well that these state- B ments 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.

c (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 Maharas~tra Times dated D 13th May, 1991. ........... In the said interview it was put up to 1st respondent that first respondent had been accusing the Petitioner of indulging in corrupt practices, on what basis such accusations were made. 1st 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 E 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 F 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 No. 1 that the Petitioner had been trying to win over the political workers by financial induce- ments ........ The Petitioner states that the above statement is false. G The Petitioner had not paid Rs. 50 lakhs or nor any amount to Janata Dal Election Fund, nor paid Rs. 20 lakhs to Shri B.G. Koise 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 H. support. ~e first. respondent knew that the above statement was

KANKARRAOv. B.V. PATIL [VERMA,J.] 755

false. The first respondent believed it it be false .......... . A

(para 13)

The Petitioner states that the first respondent was also present in the election meeting on 11th May 1991, at Srigonda at 8.30 p.m. B 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 trying to save the C country. On the other side are the ranged people trying to secure voters in the name of religion and some other candidates and on the third side there is someone who went in adoption some where 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 con- D testing 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 J anata Party candidate in this constituency because he is going to loose. 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 for 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 Kipergaon and in Nagar. He adopted a stand of interest parties while to rebell in South constituency. But while performing that role he saw that he could not get an opportunity in the nGrth. 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 path 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 in important motivation in this election. What is needed is ideology, policy, programme and morality. It is wrong to give up morality, when one is wish is not fulfilled to leave the party program and colleagues when a favourable decision is not taken and to join H

p. 756

A hand with other parties once the 'koom koom" (sacredred powder indicating natrimony) is applied, its sanctity must be maintained. But we did not know, that the koom koom 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 question; like what benefit we. will get, B which leaders are coming to South (constituency) will be village chawdi be built, will the temple be renovated will the motorbike be available for riding, will bicycles at least be available for ridding. It is not in 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 c 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 away. 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 D attitude is different. .....

The Petitioner state that in the speech, Shri Pawar have not ·taken the name of petitioner, but have made references to the petitioner stating his political career and naming the petitioner as third candidate going in adoption. ..... E The Petitioner states that the statement made by Shri Sharad Pawar stated above were innuendo. The p,etitioner states that the statement above quoted was false. The said statement was made in the presence of first respondent. The first respondent never F objected to these statements ......... The Petitioner stated the first respondent and Shri Sharad Pawar believed this 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........ .

G (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 amount to corrupt practice under section 123(4) of the Representation of People Act 1951.

KANKARRAO v. B.V. PATIL [VERMA, J.] 757

These statements are even published in the widely circulated news papers which are produced at Exhibit A to K The statements amounted to an allegation that the Petitioner was ready to buy the voters by offering bribes, t · them. The Petitioner states that bribing itself is a corrupt practice and it it is said against a candidate that he practises the corrupt practice of buying the votes by means of bribery and 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. C

(para 17)"

Recording of the evidence at the trial of the election petition was concluded on 4th September 1992 when the statement of Gadakh was recorded on commission. The High Court an order on 18th September, ·n 1992 directing Issuance of a notice to Sharad Power under Section 99 of the R.P. Act pursuant to which the notice was actually issued on 3rd October, 1992 together with the ennexures as directed in the order itself. This noti:::e was served on Sharad Pawar on 12th October, 1992. As earlier s~ ...cu, Sharad Pawar preferred a special leave petition in this Court against issuance of the notice and that special leave petition was dismissed requir- ing Sharad Pawar to raise all his objections to the notice in the first instance .before the High Court leaving those questions questions open for con- sideration 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 side on the his pleas. In the notice issued to Sharad Pawar under Section 99, the statements attribution to him in the meeting at Newasa on 3rd May, 1991 and at Srigonda on 11th May, 1991 were quoted. At this stage. It is necessary to quote only those portions from the extracts given in the notice which have been i:elied 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 : G

At Newasa on 3rd May, 1991

"Filed the nomination in South instead of North. These people guessed that it is a poor region. Scarcity area, suffers from water H

p. 758

A problems. People are engaged on Employment Guarantee Schemes. The people are having problems. always.· A good cir- cumstance to win over easily. But they do 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 B the commonman. He should be warned in clear terms that you have grown big because of Congress. Congress makes you known to.every body. Your institutions have grown because of the support coming from the congress Government at the State and the Centre. Today you left Congress. Left Your family name. Parental name c you have cast off and I warn that, you will 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 a peril but he would never sell his vote with anybody's D money. Balasaheb would come to realise after the election of 23rd at the time of counting of votes scheduled on 26th. .. ................

They will distribute bicycles, distribute dhoties and sarees. He told you to accept them. I do not have any objection..................... . E Balasaheb has become one of them. And in celebration of that occasion, if the wealth is being distributed into 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 F about everything. May be there should be generous attitude behind the distribution of wealth in the shape of decentralii;ation. 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 boqght. ..................... .. G Efforts are being made, to corrupt the people, attempts being made to put on the pressure. There will be an attempt to distribu- tion and notwithstanding anything done as above .......... .

And side by side, it this district, here is a fight between morality and honesty from one side and money resources and· a tendency

KANKARRAO v. B.V. PATIL [VERMA, J.] 759-

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 11th May, 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. ............ . D 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 'kumkum' E (sacred red powder indicating matrimony' is applied its sanctity must be maintained. But we did not know that the "kumkum" was being applied in the name of one person and the eyes were looking at some body else. .. ..... F 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 Chawdi 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 G ourself 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. ....... H

p. 760

A A decision is to be taken whether one should act on principle or disloyally whether one is to act according to morality or immorality according to humanity or in the arrogance of money and power."

The submission of Shri Ashok Desai was that the making of these statements or at least the disparaging thereof by Gadakh is not proved by any acceptable evidence and at any rate all the requirements of Sec- tion123( 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 require- ments of Section 123(4) have not been made out to justify naming him under Section 99 of the Act. Shri Ram Jethmalani supported the submis- sions 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 (r charge and not merely that of preponderance of probabilities of a civil case. It was fu~ther 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 to succumb to any such pressure or temptation. They submitted that this was done on account of l E 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 pefson of considerable financial means. They submitted that such exhorta- \ tion 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

Before adverting to the particular statements alleged to have been 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 J ethmalani with gree1ter 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 H a candidate, yet every such statement does not amount to a corrupt practice

KANKARRAOv. B.V. PATIL [VERMA,J.) 761

since it does not prejudice the election in the prevailing political climate. A 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 ~ot 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 B the electorate against possible malpractices whi'-, .il'e now not uncommon during the .elections and making of such statements. is desirable. Shri Ram J ethmalani 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. C

In the present case, the large question posed by Shri Ram J ethmalani 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 D 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 the manner suggested in the existing political climate wherein mud- E slinging' is common place, does not commend to us as the proper approach envisaged by the election law. If purity of election 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 the democracy of which purity of elections· is a ~cessary concomitant, it is the duty of the courts to. appreciate the eviovnce and construe the law in a manner which would subserve this higher purpose and not even imperceptibly facilitate acceptance, much less affirmance, of the falling 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 be best achieved through men of high moral and ethical v~ues who win the H

p. 762

A 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 re-enter the field to make, the people's choice meaningful. This can be achieved only election are contested on a positive vote and the comparison of 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.

The increasing electoral malpractices, of which some like booth- 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 D existing law does not measure upto the exiting 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 he 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 the retention is deliberate for the convenience of everyone. It 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.

We are constrained to make these observation on account of the repeated reference made at the hearing to the growing maipractices 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 of conduct of a candidate since they are not taken seriously by the voters due to the falling ethical standard.

H Real education of the electorate co.atemplates informing them of the

KANKARRAOv. B.V.PATIL[VERMA,J.] 763

past achievements and future plans of the political party on a positive note A; and its candidate's qualifications to serve that purpose compared with those of the other political parties and their candidates and not a projectio.. of the comparative greater demerits of the opponents. This is with a view to em- phasise 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.

The duty at the top echelons of leadership at the state and national level 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 1·:unpaign 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 "~ democracy and it is the duty of the top leaders of all poliucal parties to reverse this trend to enab~~ movement of the functioning democracy in the proper direction.

The lament of Gadakh and Sharad Pawar of despair against the financial might of Vikhe Patil was indeed f:ircical and sounds comical in view of their own considerable resources !nduding the power of the ruling party and the active support of the Chief Minister of the State. We cannot accept that the alleged offe1.~ing portions of the speeches of Gadakh and Sharad Pawar were educative of the electorate even if thP.y do not con- stitute 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. G 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 «' )1.;s not mean that it is a desirable practice during the election campaign. It is one thing to H

p. 764

A say that a statement does not constitute corrupt practice but entirely different to suggest that it is a desirable electoral practice forming a part of the programme of education of the electorate.

We emphasise this fact on account of the vehemence with which Shri Ram fothmalani canvassed for acceptance the view that all these state- B ments 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. c The question there~ore, is : Whether in the law as it exists, all or any of the statements proved to h' ' 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 D Several authorities were cited to emphasise the strictness of plead- ings in election petitions and the pleadings nec~c;sary 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 c.1.tributed to E .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. Balalaishna etc. v. George Fernandez and Ors. etc., (1969] 3 SCR 603, 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. InAzhar Hussain v. Rajiv Gandh~ (1986] Supp SCC 315, 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 Thada and Others, [1990] Supp SCC 248, the pl ading 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 Shanna, (1984] H 2 sec 64, the requirement of pleading of a eorrupt practice alleged was

KANKARRAOv. B.V.PATIL[VERMA,J.] 765

2 sec 64, the requirement of pleading of a corrupt practice alleged was A emphasised.

In M.J. Zaklta1ia Sail v. T.M. Mohammed and Others, (1990] 3 SCC 396, it was held that when the corrupt practice alleged is based on a innuendo in the false statement published, then the innuendo meaning must be specifically pleaded and proved. Accordingly, the attempt made by Shri B P.P. Rao at the hearing to suggest that the statement made the Vikhe patil had an election budget of 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.

The scope of an appeal under Section 116A of the Representation c of the People Act is as wide 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 D criminal charge ~ not mere preponderance of probabilities as in a civil ·: matter. (See Surinder Singh v. Hardial Singh and Others, (1985] 1 SCC 91.}

In Megraj Patadia v. R.K. Birla and Others, (1971] 2 SCR 11$", it was held that many times corrupt practices may be not be established by direct evidence and the same may have to be inferred from the proved facts arid E circumstances, but the circ\lmStances 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. · F 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 : - G xxxx xxxx xxxx (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 for does not believe to be true; in relation to the personal H

p. 766

'A character or conduct of any candidate, or in relation to the can- didature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election."

B 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 satisfi~d, notwithstanding the fact that such a statement may be defamatory in character. The additional requirements to constitute a cor- rupt 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 falses, 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 commission of the cor- rupt 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 p·ersonal 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 attac~. on the opponents recklessly.

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 G '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 o( their nature; Once the initial onus is discharged, the onus shifts to th~ other side.

KANKARRAOv. B.V. PATIL[VERMA,J.) 767

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 whereafter 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. c The meaning of the expression "statement of fact" was a point of con- siderable debate at the Bar. The true meaning of this expression is of sig- nificance 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 statements. It was contended by Shri Ashok Desai for Gadakh and Shri K. Parasaran fm; Sharad Pawar that every statements is not a 'statement of fact' and , there- fore, 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 most of the statements attributed to G'.l.dakh 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, conter<ied 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. F

There can be no dispute that the meaning of the expression "state- ment 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 G 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. H

p. 768

A For constituting the corrupt practice in Section 123(4), all the re- quirements 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 fatsity 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 conjuncture 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 D calculated_to prejudice the prospects of that candidate's election. This_ further requirement cannot be satisfied by merely stating a likely apprehen- sion 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).

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 offact 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 evider(e 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 · 1pinion. ........... "

H (Salmond on Jurisprudence, 12th Edition, at page 69)

KANKARRAO v. B.V. PATIL [VERMA, J.) 769

"Secondly, fact and opinion are frequently contrasted. Whether A 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 ............ "

(A Textbook of Jurisprudence by George Whitecross Paton, 4th Edition, at page 207) B (emphasis supplied)

In Stroud's Judicial Dictionary, 4th Edition, the meaning of the expression "false statement of fact in relation to the personal character or conduct" of C a candidate at a parliamentary election is given as "of fact, as distinguished from a false statement of opinion".

The meaning of the expression "statement of fact" in Section 123(4) of the R.P. Act has to be understood in this manner. D In Kumara Nand v. Brijmohan Lal Sharma, (1%7) 2 SCR 127, 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 he 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 :

".......... But though the onus •. 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 statem~nt believed it to be false or did not believe it to b.:, 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 ques- tion 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 H

p. 770