Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and Others

K. T. Desai C.J. in the course of which he has stated (at p. 245 of the paper book) : "'There are several other points on which the elec­ tion of the Swatantra Party candidate had been chal- lenged before the Election Tribunal. Mr. Dafu, the learned advocate for the first respondent before us, has been content with arguing the case of the first respon- dent before us on the basis of a corrupt practice being . ASHABHAI PATEL v. DABHI FULSINJI (Mudholkar I.) 715 committed by . the Swatantra Party with the consent of the Swatantra Party candidat11. He has not pressed the other points or other arguments into . service. The matter is an election matter and if we had found it neces­ sary we would have gone into other matters, but it is not necessary for us to do in view of our decision that . the election is liable to be declared void by reason of the corrupt practice that has been committed at the elec­ tion with the consent of the appellant before us." Thill is rather a curious observation to make in view of the fact that on all the other points the Tribunal had itself found against c respondent No. 1 and respondent No.· 1 was content to stake his case only on one point, and that is, the one which ultimately found favour with the High Court. It is true that an election dispute is to a certain extent different from a private dispute between the parties to a /is because the constituency also comes into the picture and, therefore, it is the duty of the Election D Tribunal to safeguard its interests and if· corrupt practices are al1cgcd against any candidate to enquire into them and ascertain whether the allegations have been substantiated. Here, the Tri­ . bunal's findings were that the other corrupt practices had not been established. Since Mr. Daru who appeared for respondent No. 1 did not even seek to challenge those findings there was no further duty upon the High Court to examine their correctness. Simi­ larly, the contention of respondent No. 1 to the effect that certain notifications were invalid was also negatived by the Tribunal and Mr. Daru did not want to challenge its decision. The question whether a particular notification is valid or invalid has no bearing F upon the question of purity of elections and, therefore, if a party who raises a contention of this kind does not propose to proceed with it, the matter is at an end and neither the Tribunal nor the High Court is bound to enquire into it. In this appeal, . therefore, we will confine ourselves only to two points-'-the first wh.ether the view of the High Court regarding the effect of the use of the G Dhruva star by the appellant is correct and the other whether the nomination of the second respondent as a candidate was impro­ perly accepted. · Section 123 of the Act sets out what shall be deemed to be corrupt practices for the purposes of the Act. Sub-section ( 3) thereof provides as follows : ''The following shall be deemed to be corrupt practices for the purposes of this Act :- 71G Sl'PRE:vIE COURT REPORTS [1965) I S.C.R. (3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person. on the ground of. his religion, race, caste, com­ munity or language or the use of, or appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that can­ didate or for prejudicially affecting the election of any candidate." Th;s provision thus deals with two matters: an appeal on the C ground of religion, caste, etc., and the use of or an appeal to religious symbols, national symbols etc. Resort to these practices in an election is prohibited by it. The allegation here is that the appellant and his agents have contravened the provision by the use of or appeal to a religious symbol. The question is whe­ ther the Dhruva star is a 'religious symbol'. As pointed out by D this Court in Jagdev Singh Sidhanti v. Pratap Singh Daulta &: Ors. ( 1 ) the question has to be examined in two branches : whe­ ther the symbol used has any special religious significance and whether its inscription on leaflets and pamphlets which were dis­ tributed amounts to the use of a religious symbol. If the Dhruva star has no religious significance, its use in the manner made will not convert that use into a use of a religious symbol. The High Court has held that it is a symbol of the Hindu religion. If we find that no particular object or creature could be regarded as a religious symbol among Hindus, its use in an election will not be within the prohibition enacted ins. 123(3) F of the Act. For, it must be borne in mind that the object under­ lying the prohibition is stirring up religious sentiment by use of or appeal to a religious symbol. If what is done does not tend to arouse religious sentiment, s. 123(3) woul<I not bo trans­ gressed. It is not disputed that the Election Commission has allotted 'star' as a symbol to the Swatantra Party which had put forward the appellant as its candidate. Nor is it disputed that in some of the leaflets and pamphlets distributed by or on behalf of the appellant the election symbol of the Swatantra Party is described H as the star Dhruva or the Pole Star. It is also not disputed that (I) A.l.R. 1965 S.C. 183. ASHABHAI PATEL v. DABHI FULSINJI (Mudholkar !.) 717- A on some pamphlets the followinig characteristics associated with the star Dhruva are set out: "Dhruva means eternal. Dhruva means firm. Dhruva means guide. B Dhruva means determined. Dhruva means one devoted to religion." In Exhibit 63 which is the -translation of the' Election manifesto of the appellant it is further said : "for free religion, free agricul­ ture and free commerce, vote for none else but the 'Dhruv,;;no c Taro'. that is Swatantra Party, at the corning elections." Not a single pamphlet, or leaflet is alleged to have been distributed by or at the instance of the appellant in which a direct appeal is made to the religious sentiments of the voters. The short question, therefore, is whether by describing the election symbol as Dhruva star and by specifying its attributes, the provisions of sub-s. ( 3) of D s. 123 could be said to have been violated. Let us first consider whether the mythological figure Dhruva has any significance in the religious beliefs or practices of Hindus. The High Court seems to have delved deep into the Vishnu Purana, the Mahabharata and the Bhagwat for digging up the story E of Dhruva and ascertaining and describing his qualities and parti­ cularly of his steadfast devotion to the creator. All that seems to us to have been wholly unnecessary because it leads us i;io­ where. Briefly, the story of Dhruva is that as a result of his steadfast devotion and complete surrender to God, Dhruva earned a boon and that was being accorded a unique place in the firma- F ment where in relation to the rest of the steller bodies his position is fixed. According to the Puranas he was promised this posi­ tion till the destruction of the universe. This itself shows that he w~s not raised to the status of ,divinity, that is to say, he did not join the company of the 33 crore deities which are said to comprise the Hindu Pantheon. How then can the association· of Dhruva with the star be regarded as an appeal to Hindu reli­ gious sentiments ? The five qualities which are generally asso- ciated with Dhruva are, indeed, noble qualities but they have no significance peculiar to Hindu religion. The significance of these qualities to -the Hindus would be in no way different from that to persons professing other religions or systems of beliefs. We­ do not think that there was any justification for- the High Court t<> read more into the symbol used by the appellant than what it apparently contains. - 718 SUPREME COURT REPORTS (1965] l S.C.R. It is true that during the wedding ceremony of a Hindu the A attention of the bride and the bridegroom is drawn to the Dhruva star and they are exhorted to be steadfast in their loyalty to· each other as Dhruva was in his devotion to Vishnu. In a few other ceremonies also the example of Dhruva is cited or a reference to his qualities made. But since Dhruva is not regarded as a deity or a Godhead a reference to him cannot be said to have religious B significance even to an orthodox or an illiterate and religiously minded Hindu. It is said that the word "Dharma priya", a quality of Dhruva mentioned in the leaflet and pamphlets, gives religious significance to the Dhruva star. The word 'Dharma' can mean religion. But it can also mCl!n 'duty'. Accordinit to the High Court it must be taken to !'lean 'one devoted to religion' and for C arriving at this conclusion it has, as already stated, referred to the Vishnu Purana, the Bhagwat and the Mahabharata. It has also referred to the evidence of a witness who says that the Dhruva star is worshipped at the time of marriage and at the time of entry into a new house. But all this only shows that Dhruva D was regarded as a great devotee of Vishnu and held in reverence by Hindus. It clearly negatives the idea of Dhruva being a Godhead. Worship of mortals is so common, at least in our country, that no one can serioasly attach religious significance to it. Such worship has no connection whatsoever with religion and is often motivated by fear of authority or by hope of reward. It E is said that the remembrance and repetition of Dhruva's name has religious efficacy .. The prevalence of such a belief amongst the Hindus has not been established and therefore there is no basis for saying that the mere mention of the Dhruva star will arouse the religious sentiments of Hindus amongst the electorate. In Sidltanti's case(') earlier referred to the use of pennants on which F "Aum" or "OM" was inscn'bed was held not to fall within the prohibition enacted in s. 123 ( 3) of the Act upon the ground that "Aum" does not symbolise religion or anything religious. Ua­ doubtedly it has great spiritual or mystical significance. For according to the Upanishads it is from the primordial sound "Aum" that this phenomenal universe was projected and that this G universe exists in and ultimately dissolves in "Aum". It is thos everything including God or Ishwara and the Supreme Brahman. Accordingly "Aum" is sacred to the Hindus. But this Court has held that even so, the use of pennants on which "Aum" was ins­ cribed did not amount to use of or appeal to a religious symbol. Much less can the distribution of pamphlets on which a symbol H (I) A. %5 S.C. 183. • ,, ' ASHABHAI PATEL v. DABHI FULSINJI (Mudholkar J.) 71!> to which no reliqious sanctity attaches be regarded as use of or appeal to a religious symbol. As already stated, the Election Commission has itself allotted the symbol of star to the Swatantra Party. Would it be turned into a religious symbol because ,the star is described in the leaf­ lets as the Dhruva star? In Webster's New Word Dictionary a symbol is described thus : "something that stands for or represents another thing; especially an object used to represent something abstract; emblem : as, the dove is a symbol of peace, the cross is the symbol of Christianity." The star, standing by itself, was a symbol of the Swatantra Party. Would it become then a religious symbol unless, like the cross, it is regarded as a symbol of Hindu religion when it is associated with Dhruva ? It is impossible to say that any particular object, bird, or animal could be regarded as a "symbol of the Hindu religion". The basic concept of Hindu religion is that the supreme being is in every "inanimate" object, plant, creature or person, i.e., in the entire creation and that the D entire creation is wifiiin the Supreme Being. If, therefore, accord­ ing to the fundamental concept of Hindu religion, God or Divinity is the reality or the substance of everything that exists, it would not be possible to say that any particular object is a symbol of the Hindu reli!!:ion. It is true that various deities in the Hindu pa.ntheon ;re associated with scime specific objects, birds or animals. Thus, for example, Shiya is associated with a trident and a coiled cobra round his neck; Vishnu is associated with the cobra 'Shesha' on which he reclines as upon a bed; the eagle is associated with Vishnu aS his vehicle; the goddess Lakshmi is associated with lotus upon which she stands and so on and so forth. Does it mean then that if a person uses a lotus or a cobra or a trident as his F election symbol he will be appealing to the religious sentiments of the people ? The answer must be clearly in the negative. What is ·a religious symbol has also been considered by this Court in Shubnath Deogram v. Ram Narain Prasad & Ors.(') In that case the appellant who had been set up by the Jharkhand· G Party had been elected to the Bihar Legislative Assembly. He wa~ an Adibasi belonging to the Ho community and the electorate in that constituency largely consisted of Adibasis belonging to this community as well as to two othe~, Mundas and Oraons. The Election Commission had allotted 'Cock' as the emblem to the party. Now, a cock is not a religious symbol of Adibasis but it H forms an integral part of the religious ceremonies which they per­ form while worshipping some of their deities. The Jharkhand' (I) [1960] I S.C.R. 953. 720 SUPREME COURT REPORTS [1965) l S.C.R. party issued and distributed leaflets in verse wherein an appeal was A made by a cock for the votes of the electorate. The majority of the Judges beld that this leaflet contained an appeal to the voters on the ground of religion and that the appellant was guilty of a corrupt practice falling within the purview of sub-s. ( 3) of s. 123 of the Act. The conclusion of this Court ~as based not upon the mere fact of the use of the symbol of cock but it was based upon B the nature of the appeal for votes made by the cock. In the leaflet the cock had said among other things : "Give me chara in the shape of voter I am victorious. Do not forget me, otherwise I tell, ye sons of men will suffer eternal miseries." According .to this Court this, in substance, amounted to saying that it would C please the deities if they did so because the cock in it~ tum was meant for sacrifice to the deities and it would displease them if they did not. The case is thus distinguishable from the one before us. Incidentally we may quote the following observations of Subba Rao J., as to what, according to him. was meant by the expression appealing to the religious sentiment. At p. 965 he says : D "A distinction must, therefore, be drawn between canvassing on grounds of religion and seeking of votes in graphic or picturesque language with analogies from religious lore : to illustrate, a candidate may appeal to the ele<;torate consisting of persons professing different religions, say Hindus, Mohammadans, Christians etc., to vote for him and say that he would sacrifice his life in the cause of his constituency just like Christ sac- rificed his life to redeem the world. He may also say that like Rama, the virtuous, who killed Ravana, the rakshasa, the embodiment of evil, he would, if elected, put down corruption, nepotism and the like in Govern­ ment. He may even say that he would sacrifice himself as a goat before Kali to bring happiness and prosperity to his constituency. All these sirnilies are drawn from religion, but they do not embody an appeal, directly or indirectly, to vote for the candidate on grounds of religion." We have quoted the learned Judge to point out tha.t a reference to prophets or religions or to deities venerated in a re­ ligion or to their qualities and deeds does not necessarily amount to an appeal to the religious sentiment of the electorate. Some­ thing more has to be shown for this purpose as indeed, according H to the majority of the Judges who decided the case, was established therein. If, for instance, the illiterate, the orthodox or the fanatical ASHABHAI PATEL v. DABHI FULSINJI (Mudholkar J.) 721 A electors are told that their religion would be in danger or they will sufier miseries or calamities unless they cast their vote for a particular candidate, that would be quite clearly an appeal to the religious sentiment of the people. Similarly if they are told that the wrath of God or of a deity will visit them if they do not exercise their franchise in a particular way or if they are told that they will receive the Blessings of God or a deity if they vote in a particular way, that would be an appeal to the religious sentiment. Similarly if they are told that they should cast their vote for a particular candidate whose election symbol is :associated with a particular religion just as the Cross is with Christianity, that will C be using a religious symbol for obtaining votes. But where, as in the case of the Hindu religion, it is not possible to associate a particular symbol with religion, the use of a symbol even when it is associated with some deity, cannot, without something more, be regarded as a corrupt practice within the meaning of sub-s. (3) of s. 123 -0f the Act. For instance, a particular object or a plant, D a bird or an animal associated with a deity is used in such a way as to show that votes are being solicited in the name of that deity · or as would indicate that the displeasure of that deity would be incurred if a voter does not react favourably to that appeal, it may be possible to say that this amounts to making an appeal in the name of religion. But the symbol standing by itself cannot be E regarded as an appeal in the name of religion. How election literature should be construed has been consi­ dered by this Court in Ku/tar Singh v. Mukhtiar Singh. (1 ) In that case the question· was whether upon a fair and reasonable construction, a poster published by or at the instance of an Akali candidate for election to the Punjab Legislative Assembly amount- F ed to a corrupt practice under s. 123 (3) of the Act. In that poster it was said that at this critical juncture it was the duty of the voters who were predominantly Sikhs to keep high the honour of the Panth, not to criticise the weaknesses of the leaders of the Panth and to defeat the opponents of the Panth at the general G elections. This Court observed that the Akali Dal party was re­ cognised as a political party for election purposes notwithstanding the fact that all of its members were only Sikhs. Then it observed: "So long as law does not prohibit the formation of such parties and in fact recognises them for the purpose of election and parliamentary life, it would be necessary to remember that an appeal made by candidates of (1) A.I.R. 1965 S.C. 141. such parties for votes may, if successful, lead to their election and, in an indirect way, may conceivably be influenced by considerations of religion, race, caste, community or language. Thi~ infirmity cannot perhaps be avoided so long as parties are allowed to function and are recognised though their composition may be predominantly based on membership of parti­ cular communities or religions. That is why we think, in considering the question as to whether a particular appeal made by a candidate falls within the mischief of s. 123 ( 3), Courts should not be astute to read into the words used in the appeal anything more than can be attributed to them on its fair and reasonable construction . . . . . . . . . The document must be read as a whole and its purport and effect determined in a faic, objec­ tive and reasonable manner. In reading such docu­ ments, it would be unrealistic to ignore the fact that .... the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language, or the adoption of metaphors. and the extravagance of expression in attacking one another, arc all part of the game; and so. when the question about the effect of speeches delivered or pam­ phlets distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allow­ ance must be made and the impugned speeches or pamphlets must be construed in that light." We agree that election literature should neither be judged ~trictly nor taken literally. All the greater reason, therefore, that the Courts ought not to read more in such literature than what appears on its face. But what, unfortunately, the High Coun has done in the case before us is to read more into the pamphlets than what they on their face contain. As far as we have been able to understand the judl!ffiCnt of Desai C.J. what he seems to say is this: that the Pole Star must be equated with the devotion of Dhruva, that Dhruva was a highly religious person, that when the leaflet say that Dhruva stands for five things it refer to his religious qualities, that such a reference would bring to the mind's eye of the voter the religious virtues of Dhruva and that, therefore, the symbol must be held to have been intended to evoke religious sentiments of the voters and affect their religious susceptibilities. ASHABHAI PATEL V. DABHI FULSINJI (Mudholkar /.) 723 A We have already said what Dhruva stands for. To say, therefore, that voters who saw or read these leaflets were likely to conjure up in their minds the picture of a highly religious person and, therefore, their religious sentiments may have been aroused would be too far fetched a conclusion to be justified. B We are, therefore, of the opinion that the High Court was in error in reversing the judgment of the Tribunal on this pOint. Before Mr. Patel referred to the finding of the High Court regarding ·the validity of the second respondent's nomination paper Mr. S. T. Desai appearing for the appellant raised a preli- C minary objection to the effect that the first respondent was not competent to challenge the correctness of the finding as he had not preferred an appeal therefrom. In support of the contention he relies upon the decision of this Court in Vashist Narain Sharma v. Dev Chandra & Ors. (1). That also was an appeal arising out of an election matter. Learned counsel for the respondent had D .tried to support the decision of the Tribunal on grounds which had been found against the appellant by the Tribunal. This Court did not permit him to do so on the ground that the provi­ sions of the Code of Civil Procedure have no application to appeals brought by special leave under Art. 136 of the Constitu- E tion and observed : "We have no appeal before us on behalf of the res­ pondents and we are unable to allow that question to be re-agitated." That judgment was relied upon on behalf of the appellant in F Sri Baru Ram v. Shrimati Prasanni & Ors.( 2 ). Mr. Doabia who appeared there for the respondents challenged the correctness of the earlier decision but this Court observed : - "Prima facie there appears to be some force in this contention; but we do not think it necessary to decide this point in the present appeal. Mr. Aggarwal's ob- G jection assumes that respondent 1 should have preferred a petition for special leave to appeal against the finding of the High Court on the issue in question; if that be so, the application made by her for leave to urge addition.al grounds can be converted into a petition for special leave to appeal against the said finding, and the H delay· made in filing the same can be condoned." (p. 1417) (I) [195S) I ·S.C.R. 509, 519. L2Sup./65-3 (2) [1959) S.C.R. 1403. 724 SUPREME COURT REPOP.TS (1965) I S.C.R. It is obvious that the Division Bench followed the earlier Division Bench only because it has considered itself bound by it. It seems to us, with respect, that the earlier decision does not correctly represent the true legal position. For, a~ soon as special leave is granted there is an appeal before this Court and while dealing with such an appeal this Court exercises its civil jurisdic­ tion. It is true that the rules framed by this Court in exercise of its rnle making powers do not contain any provision analogous to 0. XU, r. 22 of the Code of Civil Procedure which permits a party to support the judgment appealed against upon a ground which has been found against him in that judgment. The provi­ sion nearest to it is the one contained in 0. XVIII, r. 3 of the Rules of this Court which requires partie.> to file statement of cases. Sub-rule ( l) of that rule provides that Part I of the statement of the case shall also set out the contentions of the parties and the points of law and fact arising in the appeal. II further provides thJt in Part IT a party shall set out the propo­ sitions of law to be urged in support of the contentions of the pa~ty lodging the case and the authorities in support thereof. There is no reason to limit the provision of this rnle only to those contentions which deal with the points found in favour of that party in the judgment appealed from. Apart from that we think that while dealing with the appeal before it this Court h~ the power to decide all the points arising from the judgment appealed against and even in the absence of an express provision like 0. XU, r. 22 of the Code of Civil Procedure it can devise the appropriate procedure to be adopted at the bearing. ·There could be no better way of supplying the deficiency than by draw­ ing upon the provisions of a general law like the Code of CiVJ1 Procedure and adopting such of those provisions as arc suitable. We cannot lose sight of the fact that normally a party in wbose favo~~ the judgment appealed from has been given will not be granted special leave to appeal from it. Considerations of justice, therefore, require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived in that judgment. We are, therefore, of the opinion that in Vasisht Narain Sharma's case(') too narrow a view was taken regarding the powers of this Court and we over-rule the prelimi­ nary objection of Mr. S. T. Desai. In so far as the age of the· second respondent is concerned the High Court has fully considered the evidence and has rightly (l) (1955] I S.C.R. SC9. ASHABHAI PATl!L v. DABHI FULSINJI (Mudholkar I.) 725' A r~jected the entries in the birth and death register maintained by the police Patel and instead . accepted the school cc;rtificates pertaining to the second respondent in which· his da~ ofc birth is stated. We need not say anything more on this point as Mr. Patel, who appears for the first· respo11dent, has not seriously challenged the finding of th\: High Court. Upon this view we B hold that no ground has· been made .out for. •settint' aSide the election of the appellant, allow the appeal; set aside the decisions of the High Co~ and_ the Election Tribunal and dismiss .the election petition With co8ts 'throughout: Appeal allowed.