Case Note & Summary
This appeal under Section 116A of the Representation of the People Act, 1951 arose from the judgment of the Bombay High Court in Election Petition No. 19 of 1990, dated 1st and 2nd July 1991, which set aside the election of the appellant, a Bharatiya Janata Party candidate, to the Maharashtra Legislative Assembly from the Matunga constituency. The respondent was the Janata Dal candidate. The election was held on 27 February 1990 with results declared on 1 March 1990; the appellant secured 31,530 votes, the respondent 28,021, and the Congress candidate 28,426. The election petition alleged corrupt practices under Sections 123(3) and 123(3A) based on speeches made on 29 January 1990 and 24 February 1990 by leaders of the BJP-Shiv Sena alliance, and on speeches by the appellant on 8 and 15 February 1990, asserting that these speeches appealed to voters on the ground of Hindu religion. The High Court rejected the allegation that the appellant's own speeches constituted corrupt practices, and the Supreme Court agreed, finding them innocuous. The speeches of 29 January 1990 occurred before the appellant became a candidate on 8 February 1990, and thus could not be attributed to her as a candidate, as per Subhash Desai v. Sharad J. Rao. The only remaining speeches were those of 24 February 1990 by alliance leaders. The High Court held the appellant vicariously liable for these without recording a clear finding of her consent, and without issuing notice or naming the speakers under Section 99 of the Act. The Supreme Court held that under a combined reading of Sections 98 and 99, when a returned candidate is found guilty of corrupt practice vicariously for the act of another person with consent, the final judgment must name that person after notice and inquiry under Section 99, and non-compliance vitiates the judgment. The Court further held that a leader of a political party is not necessarily an agent of every candidate of that party; consent of the candidate or election agent must be pleaded and proved. The High Court had drawn only a half-hearted presumption of consent from the fact that the speakers were leaders, which was insufficient. Considering the scanty material, the failure to prove consent, the fact that the Legislative Assembly had been dissolved and the next general election had taken place, the Supreme Court found a remand uncalled for. Accordingly, the appeal was allowed, the High Court judgment set aside, and the election petition dismissed with costs to the appellant throughout.
Headnote
A) Election Law - Corrupt Practices - Appeal to Religion - Representation of the People Act, 1951, Sections 123(3) and 123(3A) - The returned candidate's own speeches made on 8.2.1990 and 15.2.1990 were innocuous and did not constitute corrupt practices; the High Court's rejection of the charge based on those speeches was upheld. Held that there was nothing in them to constitute corrupt practices under sub-sections (3) and/or (3A) of Section 123. B) Election Law - Candidature and Corrupt Practices - Acts Prior to Candidature - Representation of the People Act, 1951, Sections 123 and 100(1)(b) - Speeches made on 29.1.1990 before the appellant became a candidate on 8.2.1990 were irrelevant; any act prior to date of candidature cannot form basis of corrupt practice by a candidate at that election. Relied on Subhash Desai v. Sharad J. Rao and Others, 1994 Supp (2) SCC 446. C) Election Law - Notice and Naming of Other Persons - Vicarious Corrupt Practice - Representation of the People Act, 1951, Sections 98 and 99 - When a returned candidate is held guilty of corrupt practice vicariously for an act done by any person other than his agent with consent, the final finding must be recorded only after notice under Section 99 to that other person and an inquiry, naming that person simultaneously; this is the effect of combined reading of Sections 98 and 99. Held that judgment making order under Section 98 without complying with Section 99 is vitiated. D) Election Law - Party Leader as Agent and Consent - Representation of the People Act, 1951, Sections 100(1)(b), 123 - A leader of a political party is not necessarily an agent of every candidate of that party; an agent has general authority from candidate and acts under instructions, while a leader does not. Thus consent of the candidate or election agent is necessary when corrupt act is done by any other person, including a party leader; consent may be implied from personal presence without protest but not merely from status as leader. Held that on scanty material, half-hearted presumption of consent from speakers being leaders, and because the Assembly was dissolved and next election taken place, remand was uncalled for. E) Election Law - Final Order - Appeal Allowed and Petition Dismissed - Representation of the People Act, 1951, Sections 98, 116A - The impugned judgment of the High Court setting aside the election was set aside and the election petition dismissed; appellant awarded costs throughout from respondent.
Issue of Consideration
Whether the High Court erred in setting aside the election of the returned candidate based on speeches by leaders of political parties without recording clear finding of consent and without complying with Section 99 of the Representation of the People Act, 1951; whether speeches made before the candidate's candidature could form basis of corrupt practice; whether the candidate's own speeches constituted corrupt practices; whether leaders of a political party are necessarily agents of the candidate requiring no proof of consent
Final Decision
Appeal allowed; impugned judgment of High Court set aside; election petition dismissed; appellant awarded costs throughout from respondent.
Law Points
- Corrupt practices under Sections 123(3) and 123(3A) require appeal to religion by candidate or agent or other person with consent
- acts prior to candidature cannot be attributed to candidate
- speeches by candidate held innocuous
- leader of political party not necessarily agent of candidate
- consent of candidate or election agent must be pleaded and proved for acts by other persons
- combined reading of Sections 98 and 99 requires notice and naming of other person when candidate held vicariously liable
- non-compliance vitiates judgment
- remand uncalled for when assembly dissolved and next election taken place
