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Ramanbhai Ashabhai Patel Vs. Dabhi Ajitkumar Fulsinhji and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 428 of 1962
Judge
Reported inAIR1963Guj315
ActsRepresentation of the People Act, 1951 - Sections 100(1) and 123(3)
AppellantRamanbhai Ashabhai Patel
RespondentDabhi Ajitkumar Fulsinhji and ors.
Appellant Advocate J.M. Thakore, Adv. General and; B.R. Shah, Adv.
Respondent Advocate C.T. Daru and; B.K. Amin, Advs.
DispositionAppeal dismissed
Cases ReferredHarishchandra Bajpai v. Triloki Singh
Excerpt:
election - election symbol - sections 100 (1) and 123 (3) of representation of the people act, 1951 and article 173 of constitution of india - appeal against order canceling election of appellant - symbol used for election by appellant has religious significance - principle of law prescribes that if symbol has religious appeal to section of public then it is religious symbol - appellant also guilty of consenting to corrupt practice - cancellation of election of appellant affirmed. - - it is well known that a large number of electors are not educated. an appeal on the ground of religion or the use of or appeal to a religious symbol may have a powerful effect on the popular mind. for this purpose we can do no better than turn to the appeal itself which has been made by the swatantra.....k.t. desai, c.j.1. this is an appeal, from the decision of the election tribunal, nadiad given on the 10th of september, 1962, setting aside the election of ramanbhai ashabhai patel to the gujarat legislative assembly from uttarsanda constituency, ramanbhai ashabhai patel, the appellant before us, who was the first respondent before the election tribunal, is hereinafter referred to as the swatantra party candidate'. the first respondent in this appeal ajitkurnar fulsinhji dabhi who was the petitioner before the election tribunal, is hereinafter referred to as 'the congress candidate'. the second respondent in this appeal amarsinhji bhupatsinhji vaghela, who was the second respondent before the election tribunal, is hereinafter referred to as 'the independent candidate.'2. on 13th january,.....
Judgment:

K.T. Desai, C.J.

1. This is an appeal, from the decision of the Election Tribunal, Nadiad given on the 10th of September, 1962, setting aside the election of Ramanbhai Ashabhai Patel to the Gujarat Legislative Assembly from Uttarsanda constituency, Ramanbhai Ashabhai Patel, the appellant before us, who was the first respondent before the Election Tribunal, is hereinafter referred to as the Swatantra Party candidate'. The first respondent in this appeal Ajitkurnar Fulsinhji Dabhi who was the petitioner before the Election Tribunal, is hereinafter referred to as 'the Congress candidate'. The second respondent in this appeal Amarsinhji Bhupatsinhji Vaghela, who was the second respondent before the Election Tribunal, is hereinafter referred to as 'the Independent candidate.'

2. On 13th January, 1962, a notification was issued under Section 15(2) of the Representation of the People Act, 1951, directing that a general election be held for the purpose of constituting a new Legislative Assembly for the State of Gujarat. By the said notification, the Governor called upon all the Assembly constituencies in the State of Gujarat to elect members in accordance with the provisions of the Representation of the People Act, 1951, and rules and orders rnade thereunder. On the same day, another notification was issued under Section 30 of the aforesaid Act where under the Election Commission notified various dates for various purposes. Among the dates so notified was the date for the scrutiny of the nomination papers, the date being the 22nd of January, 1962. It appears that the Swatantra Party at first intended to sponsor the candidature of the second respondent from the Uttarsanda constituency. However, on 19th January, 1962, the Swatantra Party did not give a ticket to the second respondent, but gave the same to the appellant whereupon the appellant stood for election as the Swatantra Party candidate from the said constituency. The second respondent thereupon stood for election as an Independent candidate from the said constituency. The first respondent before us stood for election as a Congress candidate from the said constituency. On 22nd January, 1962, being the date fixed for the scrutiny of the nomination papers, the Returning Officer accepted the nomination of all the aforesaid three candidates for election from the said constituency. The polling took place on the 21st February, 1962, and on the 26th February, 1962, the result of the election was 'declared by the Returning. Officer. The Returning Officer found that the Swatantra Party candidate had secured 20662 votes, the Congress candidate had secured 15,190 votes and the Independent candidate had secured 7,937 votes, and he declared the Swatantra Party candidate to have been elected at the said election. The Congress candidate being aggrieved by the result declared as aforesaid, filed a petition praying that the election of the Swatantra Party candidate be declared void for diverse reasons and that he, the Congress candidate, be declared elected and/or a fresh election be directed to be held, and for costs of the petition;

3. One of the contentions urged before the Election Tribunal was that the Independent candidate was not qualified to stand for election and that the result of the election had been materially affected by reason of his being allowed to stand for the election. Article 173 of the Constitution provides inter alia as under:-

'A person shall not be qualified to be chosen to fill a seat in the legislature of a State unless he x x x

(b) is, in the case of a seat in the State Legislative Assembly, not less than 25 years of age.'

Section 36 of the Representation of the People Act, 1951, provides inter alia as under :-

'36. Scrutiny of nominations. -- (i) On the; date fixed for the scrutiny of nominations under Section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at such, time and place as the Returning Officer may appoint; and the Returning Officer shall give them ail reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Section 33.

(2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:-

(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely;-

Articles 84, 102, 173 and 191.

XX X.'

It is not disputed that in order to be duly qualified to stand for election, a candidate must have attained the age of 25 years on the date fixed for the scrutiny of the nomination papers, i. e., on 22nd January, 1962, in the present case. It was urged on behalf of the Congress candidate that the Independent candidate was born on the 11th April, 1937, and that he had not completed the age of 25 years on 22nd January, 1962. On the other hand, it was contended on behalf of the Swatantra Party candidate that the Independent candidate was born on the 6th January, 1937 and that the Independent candidate had attained the age of 25 years prior to 22nd January, 1962, and was duly qualified to stand for election. The Election Tribunal came to the conclusion that the 'Independent candidate had been born 'somewhere in the; beginning of the month of April,' 1937, and that he had not attained the age of 25 years on the date of the scrutiny and was not qualified for standing as a candidate. The Tribunal held that the case fell within the ambit of Section 100(1)(d)(iv) of the Representation of the People Act, 1951, inasmuch as the result of the election in so far as it concerned the Swatantra Party candidate who was the returned candidate, had been materially affected by the non-compliance with the provisions of the Constitution by the Independent candidate, and declared the election of the Swatantra Party candidate to be void.

4. The controversy before us has centered round the question whether the Independent candidate had or had not attained the age of 25 years on 22nd January, 1962, being the date of the scrutiny.

4-9. (His Lordship after discussing the evidence proceeded:) On the evidence on record, we hold that he was born on the 6th January, 1937, that he had completed the age of 25 years prior to the date of the scrutiny, viz., 22nd January, 1962, and was duly qualified to contest the election as a candidate.

10. We shall now deal with the next point which has been pressed into service for the purpose of setting aside the election of the Independent candidate. In paragraph 13 of the petition it has been pleaded as under:-

'That the Respondent No. 1 and his agent with his consent have issued and widely distributed leaflets with Star as the symbol with a prefix Dhruva which means eternal, firm, guide, resolute and devoted to religion. The recognised symbol of the party is 'Star' without a prefix 'Dhruva'. The petitioner says that the Respondent No. 1 and the Swatantra Party with the consent of the Respondent No. 1 as the agent had used the prefix 'Dhruva' with a view to give religious impetus, and to appeal the voters to vote for the Respondent No. 1 and the Swatantra Party candidate in the name of religion by using religious symbol of 'Dhruva'. This amounts to corrupt practice within the meaning of Section 123(3) of Act 1951. Marked Annexure 'E' collectively are the leaflets. That the said leaflets were freely distributed at the meetings held between 6-2-1962 to 18-2-1962 in Saloon, Pij, Vaso, Debhan and other places by one Amritlal Dava and other supporters of the Respondent No. 1 as agents of the Respondent No. 1 at the instance and with the consent of the Respondent No. 1.'

At the hearing before the Election Tribunal, the following issues were raised:-

'8. -- Is it proved that respondent No. 1 or his agents with his connivance or consent have circulated leaflets marked annexure 'E' of the petitioner in the meeting between 6-2-62 to 18-2-62 at villages Salun, Pij, Vaso and Debhan?

Is it proved that the respondent No. 1 has used the symbol of 'Star' as a religious symbol by describing it as a symbol of Dhruva? Does it amount to a religious appeal to the voters for respondent No. 1?

9. -- Does the circulation of the leaflet marked 'E' amount to a corrupt practice?'

Section 123 of the Representation of the People Act, 1951, provides inter alia as under:-

'123. Corrupt practices. -- The following shall be deemed to be corrupt practices for tha purposes of this Act:-

x x x

(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, community or language or the use of, or appeal to, religious symbol or tha 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 candidate or for prejudicially affecting the election of any candidate.

XXX.

By this section, the use of or appeal to religious symbols for the furtherance of the prospects of the election of a candidate or for prejudicially affecting the election of any candidate has been constituted into a corrupt practice. By section 100 grounds have been set out for declaring an election to be void. That section inter alia provides as under:-

'100. Grounds for declaring election to be void.

(1) Subject to the provisions of Sub-section (2) if the Tribunal is of opinion --

x x x

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent: x x

The Tribunal shall declare the election of the returned candidate to be void.'

In the light of those provisions of law, we have to consider whether any corrupt practice as defined in Section 123 has been committed by the Swatantra Party 'candidate who is the returned candidate in the present case, or by any other person with the consent of the Swatantra Party candidate. If so, his election is liable to be declared to be void. Under Rule 5 of the Conduct of Election Rules, 1961, it ii provided inter alia PS under: -

'5. Symbols for elections in parliamentary and assembly constituencies. -- (i) The Election Commission shall, by notification in the Gazette of India and in the Official Gazette of each State, specify the symbols that may be chosen by candidates at elections in parliamentary or assembly constituencies and the restrictions to which their choice shall be subject.

(2) Where at any such election, more nomination papers than one are delivered by or on behalf of a candidate, the declaration as to symbols made in the nomination paper first delivered, and no other declaration as to symbols, shall be taken into consideration under Rule 10 even if that nomination paper has been rejected.'

By Rule 10 (4) it is provided as under :-

'10. Preparation of list of contesting candidates. --

xxx

(4) At an election in a ..... assembly constituency, where a poll becomes necessary, the Returning Officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission --

(a) allot a different symbol to each contesting candidate in conformity, as for as practicable, with his choice, and

(b) if more contesting candidates than one have indicated their preference for the same symbol, decide by lot to which of such candidates the symbol will be allotted.'

Rule 10 (5) and Rule 10 (6) provide as under:-

'(5). -- The allotment by the Returning Officer of any symbol of a candidate shall be final except where it is inconsistent with any directions-issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit.

(6). -- Every candidate or his election agent shall forthwith be jnfonned of the symbol allotted to the candidate and be supplied with a specimen thereof by the Returning Officer.'

In exercise of the powers conferred by Sub-rule (i) of Rule 5, the Election Commission issued an order dated 19th September, 1961, directing as follows: -

'(1) The choice of symbols to be made by candidates at any election in a parliamentary or assembly constituency in a State specified in column 1 of the table below shall be made from the symbols specified against that State in column 2 or column 3 of the table and shall be subject to the following restrictions.

(2) Any such candidate sponsored by a political party mentioned in brackets after a reserved symbol specified against the State in column 2 of the table shall choose, and shall be allotted, that symbol and no other symbol.

x x x

TABLE State.

Reserved symbols.

Free symbols

1

2

3

*

*

*

4. Gujarat.

1. Two bullocks with yoke on.

(Congress).

2. Hut.

(PrajaSocialist).

3. Faro of corn and sickle

(Communist).

4. Star.

(Swatantra). *

1. Lamp.

(Jan Sangh.)

2, Trees

(Socialist).

3. Rising sun.

(Rama RajyaParishad).

4. Elephant

(Republican),

5. Bicycle.

6. Flower.

7. Scales.

*

*

*

The symbol 'Lion' has been subsequently added as a free symbol by a subsequent notification dated 3rd November, 1961. Having regard to the above rules and the notification it is clear that 'Star' was the reserved symbol for the candidates sponsored by the Swatantra Party in the State of Gujarat and that all candidates sponsored by the Swatantra Party were under an obligation to choose and were only to be allotted that symbol and no other symbol. Similarly, all candidates sponsored by the Congress party were under art obligation to choose 'two bullocks with yoke on' as the election symbol. 'Star' was the symbol allotted to the Swatantra Party candidate, 'Two bullocks vvith yoke on' was the symbol allotted to the Congress candidate and 'Lion' was the symbol allotted to the Independent candidate.

11. The Gujarat Swatantra Paksha i.e., the Swatantra Party of Gujarat, got printed an election manifesto. The same is exhibited in the case as Exhibit 63. On the back cover of the election manifesto have been printed with the symbol of the star in bold type the words following in Gujarati:-

^^Lor= i{kuq pqaV.kkuqa fu'kku /kzqouks rkjks**

When translated, it reads the Swatantra Party's election symbol 'Dhruva no taro' i. e., the Star of Dhruva. Then follow the words:

/kzo ,Vys lukru(

/kzo ,Vys vMx(

/kqzo ,Vys ekxZn'kZd(

/kzo ,Vys rfu;h(

/kzo ,Vys /keZfiz;-**

These words have been translated as under :-

'Dhruva means eternal;

Dhruva means firm;

Dhruva means guide;

Dhruva means determined;

Dhruva means one devoted to religion.'

Thereafter appear the words:-

^^eqDr /keZ( eqDr [ksrh vus eqrcsikj ekVs vkiuks er vkxkeh pqaV.kh vkseka

/kqzo rkjk** us ,Vys Lora=i{kust vkiks-**

These words have been translated as under: -

'For free religion, free agriculture and free commerce,' vote for none else but 'Dhruva tara', that is, Swatantra Paksha at the coming election.'

(His Lordship after discussing the evidence proceeded:) From what we have stated above, it is clear that the Gujarat Swatantra Party turned the symbol of 'star' without anything more, which was reserved for the party and which was given by the Election Commission to the candidates of the party, into 'Dhruva no Taro', i. e., the Star of Dhruva. It has described a simple star reserved for the party and given to the candidates sponsored by the party as the star of Dhruva. The simple star as such has no inherent appeal. The Gujarat Swatantra Party has turned this star, which we may call a star of no appeal, into the Star of Dhruva. Misrepresentation of the election symbol does not however constitute the subject-matter of any charge before us. The charge levelled before us is that the Swatantra Party and the Swatantra Party candidate have, by describing the symbol as the Star of Dhruva, made use of and made an appeal to a religious symbol for the furtherance of the prospects of the election of the Swatantra Party candidate or for prejudicially affecting the election of other candidates. We will have, from that point of view, to consider whether the Star of Dhruva is or is not a religious symbol. The persons to be considered in this connection are those constituting the' electorate. What has to be borne in mind is the appeal which the Star of Dhruva would have on those entitled to vote In this constituency. It is well known that a large number of electors are not educated. There may be quite a number of them who are steeped in religion, By the provisions contained in Section 123(3) of the Representation of the People Act, 1951, the secular nature of the election has been sought to be maintained India is a country where persons fellow numerous faiths. In order to ensure the secular nature of the elections it has been provided that an appeal by a candidate or his election agent or his polling agent or by any person with his consent, i. e., the consent of the candidate concerned, to vote or refrain from voting for any person on the ground of his religion or the use of or appeal to religious symbols for the furtherance of the prospects of the election of the candidate concerned or for prejudicially affecting the election of any candidate, has been prohibited, and has been regarded as a corrupt practice. An appeal on the ground of religion or the use of or appeal to a religious symbol may have a powerful effect on the popular mind. It is in order to preserve the secular character of the election that it has been in terms-provided that an appeal of a nature which otherwise may be regarded as a meritorious appeal by a number of people wedded to religion and the use of or an appeal to a religious symbol which may be regarded as a meritorious use or appeal by several persons, should be regarded as constituting a corrupt practice. We have to see whether by describing the election symbol as 'Dhruva no taro' or the Star of Dhruva and using the same and making an appeal to the same, a religious symbol has been used or an appeal to a religious symbol has been made and whether the same has been done for the furtherance of the prospects of the election of the Swatantra Party candidate or for prejudicially affecting the election of any other candidate. For this purpose we can do no better than turn to the appeal itself which has been made by the Swatantra Party. Underneath the description of the star as the Star of Dhruva, appears a. five-fold description. The first description is^^/kzqo ,Vys lukru**(Dhruva etale sanatan ),' i.e, Dhruva means eternal. The second description is ^^/kzqo ,Vys vMx**(Dhiuva etale adag) i.e , Dhruva means firm. The third description is ^^/kzo ,Vys ekxZ&n;'kZd** (Dhruva etale margadarshak) i.e., Dhruva means guide. The fourth description is ^^/kzqo ,Vys rfu;k** (Dhruva etale Krutnishchayi) i.e., Dhruva means one who is firmly resolved. The fifth description is ^^/kzqo ,Vys /keZfiz;-**(Dhruva etale Dharmapriya) i.e., Dhruva means one devoted to religion. It has been strongly urged before us that the word dharma' found in the last description applies equally to duty as to religion and the last expression may well be translated as one devoted to duty. It is urged that each of these descriptions applies to the Polar Star and that what was intended to be conveyed by these words was that the Polar Star was eternal, was firm, was a guide, was determined and was devoted to duty and that the Swatantra Paksha or the Swatantra Party being equated with the polar star had all the attributes described as aforesaid of the Polar Star. The words ^^r fu;ks** (Krut Nishchayi) and ^^/keZ fiz;**(Dharampriya) refer to the attributes of persons and not of things. The word ^^r fu;h** (Krut Nishchayi) represents a person who has taken a firm resolve and the word ^^/keZ fiz;**(Dharmapriya) refers to a person who is devoted to religion or a person to whom religion is dear. It may equally apply to a person to whom duty is dear or who is devoted to duty. These words conjure up before the mind's eye a personwho is ^^/keZ fiz;**(Dharmapriya) or devoted to religion or duty and one who is ^^r fu;h** (Krut Nischayi) i. e., one who is firmly resolved. The words used are not: -

^^/kzqouks rkjks ,Vys lukru rkjks(

/kzqouks rkjks ,Vys vMx rkjks(

/kzqouks rkjks ,Vysa ekxZn'kZd rkjks(

/kzqouks rkjks ,Vys rfu;h rkjks(

/kzqouks rkjs ,Vys /keZfiz; rkjks-**

i.e., Dhruva star means an eternal star, Dhruva star means a firm star, Dhruva star means a star which is a guide, Dhruva star means a determined star, Dhruva star means a dutiful star, but

^^/kzqo ,Vyslukru] /kzqo ,Vys ekxZn'kZd] /kzqo ,Vys rfu;h] /kzqo ,Vys /keZ fiz;-**

i.e., Dhruva means eternal, dhruva means firm, Dhruva means guide, Dhruva means one who is firmly resolved, Dhruva means one who is devoted to religion or duty. Even if the words had been so used, they would not aptly describe the qualities of the Polar Star. The word 'Dhruva' has been used not as an adjective but as a proper noun and the attributes are the attributes of the personage Dhruva. The words ^^r fu;h** (Knit Nischayi) and ^^/kekZiz;** (Dharmapriya) are the attributes of Dhruva, the mythological personage and not of the Polar Star. The learned Advocate General strongly urged before us that when an appeal has been made that vote should be cast (or 'Dhruva Tara' i.e., the Swatantra Party, what was intended to be conveyed was that tho Swatantra Party was equated with the Polar Star and that it symbolised the qualities which the Polar Star possessed. He relied upon the last few words which lay down

^^vkiukser vkxkeh pqV.kh vkseka ^^/kzqo rkjk** us ,Vys oar= i{kust vkiks**

which means, vote for none else but the Dhruva star i.e., the Swatantra Party, at the coming elections.

12. When considering these words and the appeal which these words have on the popular mind, it is necessary to bear in mind what Dhruva stands for, having regard to the religious literature on the subject. In this connection, our attention has been called to various publications of a religious nature. Shrimad Bhagwat is regarded by a large number of Hindus as a religious book, the reading whereof to the popular mind is supposed to bring great religious merit and emancipation from rebirth. Pious Hindus get Shrimad 'Bhagwat read for seven days in order to derive spiritual benefit for themselves and to confer spiritual benefit on those who remain present and listen to the reading of Shrimad Bhagwat. 'Dhruva Charitra' occupies five 'Adyayas' out of 31 'Adhyayas' of the fourth 'Skanda' of Shrimad Bhagwat,. It recites the doings of Dhruva, the son of. King Uttanpad and grandson of Mann, born of Suniti. King Uttanpad had two wives, Suruchi and Suniti. Suruchi was the favourite wife. Seeing the son of Suruchi sitting in the lap of King Uttanpad, Dhruva desired to sit in the lap of King Uttanpad. Queen Suruchi forbade him from doing so, stating that he would have to be born of Suruchi in order to sit in the lap of King Uttanpad. Being touched to the quick, child Dhruva went to the forest, devoted himself to Lord Vishnu and did penance for long. Ultimately, Lord Vishnu was pleased with his devotion and his penance and presented himself to Dhruva. God Vishnu gave a boon to Dhruva that Dhruva would occupy the region of Lord Vishnu himself where Saptarishis would do him obeisance, Thereafter, according to the story as given in tho Bhagwat, King Uttanpad went to the forest and Dhruva became the king and reigned for 36000 years whereafter the 'Viman' the aerial chariot of Vishnu came to take him to 'Swarga.', that Yama, the lord of death, came when be was about to mount the 'Virnan' but Dhruva put his foot on the head of Yama the lord of death, mounted thy 'Viman.' and went to the region of Lord Vishnu and has become the star Dhruva and he shines in the firmament. It is said in Shrimad Bhagwat that the reading of the doings of Dhruva makes one free from all sin and takes one to heaven. The recital of Dhruva Charitra is considered among Hindus to be an act of great religious merit. The five-fold attributes of Dhruva given in Exhibit 63 and Exhibit 71-A are the attributes of Dhruva to whom, according to the religious belief, Lord Vishnu made himself manifest and to whom an eternal place has been given by Lord Vishnu himself, ^^/kzqo ,Vys lukru**(Dhruva etale Sanatan) refer to Dhruva the great personage who, from being a mortal, attained immortality and became eternal. The words ^/kzqo ,Vys vMx* (Dhruva etale adag) refer to Dhruva, the great personage, who was firm in his resolve and pleased the Lord and attained the celestial position. The words ^^/kzqo ,Vys ekxZn'kZd** (Dhruva etale margadarshak) refer to Dhruva the great personage who has shown the path leading to the Lord. The words ^^/kzqo ,Vys rfu;h** (Dhruva etale Krutnishchayi) refer to that very same personage who, by his firm resolve, attained his heart's desire. The words ^^/kzqo ,Vys /keZfiz;** (Dhruva etale Dharmapriya) refer to that very personage to whom religion was dear. All these descriptions conjure up before the Hindu mind the great personage Dhruva described in Shrimad Bhagwat and not the Polar Star as known to astronomers. The Swatantra Party in converting the plain symbol of star given by the Election Commission into the symbol of the Star of Dhruva has not sought to make a secular appeal by' reference to a star as known to astronomy. The appeal is made to the great religious personage Dhruva, to attract votes of the election. It is an appeal intended for the furtherance of the prospects of the election of the candidates of the Swatantra Party. We cannot regard this appeal as purely a secular appeal having a reference to the Polar Star. There is a translation of Shrimad Bhagwat in English, by J. M. Sanyal. The following are the extracts therefrom:-

'This holy account of Dhruva is regarded with high esteem by the pious people. The recitation and hearing of this holy narration bring fame, longevity and effluence, and are also highly sacred. This destroys sin and is even like a highly beneficial religious rite. This brings one to the heaven and the region conferred on Dhruva (Dhrava loka) by the Reverend One, and as such it is highly praiseworthy. The person who is in a reverential spirit of mind listens to the story of Dhruva acquires devotion for the Reverend One and becomes frae from worldly miseries. If a person intends to acquire greatness, then he should listen to the account of Dhruva and thereby his desire will become fulfilled. By hearing this story a person acquires excellent character. By reverentially listening to this story, he that desires energy gets it; and he who desires intelligence obtains intellectual power. With a pure mind and in the assembly of Brahmins, a person should recite the holy narration about the righteous Dhruva both in the morning and in the evening. A person should particularly recite the sacred story on the full moon and new moon day, on the 12th day of the month, during the influence of the star named Sravana, during the confluence of three Tithis (trabaspersha, a day in the course of which practically three tithis touch) Vyatipata day, San-kranti day (the last day of the month is called the Sankranti day) and on Sundays. One should also recite it with a desireless heart unto persons entertaining veneration for Lord Shri Hari. Thereby the soul will be merged in the self and the life's aim will be realised. The Gods'are graciously disposed towards that kind-hearted friend of the distressed who compassionately imparts the ambrosial knowledge of the path to attain the Reverend One to one who is ignorant thereof.'

This appears in Chapter XII, Book IV.

13. In Book V, Chapter XIII, at page 91 of Shrimad Bhagwat as translated by J. M. Sanyal, it is stated as under:-

'The auspicious Sukadeva said :- At a distance of three and ten Yojanas, O King, from this region, it is said, lies the illustrious sphere of Reverend Vishnu, which transcends every region. In that excellent region there dwells that great devotee of the Reverend One, Dhruva, the son of King Uttanpad. That auspicious devotee of the Lord exists there ever, reverentially circled by Agni, Indra, Prajapati, Kasyapa and Dharma, all simultaneously converted into stars. They attained equal longevity with the beings living for a Kalpa. The greatness of Dhruva has already been described. The Supreme Lord has created him as a pillar for the support of the astral spheres that constantly course in the heavens in accordance with the course of the Reverend Kala (Time), devoid of Nimishas, incapable of being described in the words; and it ever shines in that shape.'

A translation of Shri Vishnu Purana in English has been made by H. N. Wilson. In Chapter XII, Part I at page 80, thereof, the following words in reference to Dhruva appear:-

' A station shall be assigned to thee, Dhruva above the three worlds; one in which thou shall sustain the stars and the planets; a station above those of the Sun, the Moon, Mars, the son of Soma (Mercury), Venus, the son of Surya (Saturn), and all the other constellations; above the regions of the seven Rishis, and the divinities who traverse the atmosphere. Some celestial beings endure for four ages; some for the region of a Manu: to thee shall be granted the duration of a Kalpa. Thy mother Suniti, in the orb of a bright star, shall abide near thee for a similar term; and all those who, with minds attentive, shall glorify thee at dawn or at eventide, shalt acquire exceeding religious merit.'

'He who shall worthily describe the ascent into the sky of Dhruva, for ever shall be freed from all sin, and enjoy the heaven of Indra. Whatever be his dignity, whether upon earth or in heaven, he shall never fall from it, but shall long enjoy life, possessed of every blessing.'

In the Maha Bharata Anushashan Parva, as translated in prose by Manmatha Nath Dutt (1897 Edition), it is stated at page 384 as under :-

'One becomes freed from every trouble and calamity by daily reciting the names of the celestials, of the seven Rishis, and of Dhruva. Indeed such recitation speedily frees one from distress.'

In the evidence that has been led before the Election Tribunal, it has been stated by Ranibhai Ambalal who gave evidence on behalf of the Congress candidate and whose evidence is Exhibit 103, as under :-

'This star of Dhruva is the place for Vishnu. So, we people worship the star of Dhruva, at the time of marriage; couple would be happy and the residence in the new house would also be happy. Dhruva was the son of a king who being angry with his father, left his house and worshipped Vishnu whereupon Vishnu became pleased with him and gave him his own place. I knew this story from the 'Shastries' who have read 'Bhagwat Saptaha' at our village. It is said that if the name of Dhruva is taken in the morning and its story is heard, our sins would be washed away, x x x After reading the pamphlets, I felt that we should vote for 'Dhruva' star for the sake of 'Bhakti'.'

In his cross-examination he stated that Brahmins worship Dhruva at the time of 'vastu' ceremony.

14. Witness Bhanubhai Muljibhai, who gave evidence on behalf of the Congress candidate and whose evidence is Exhibit 119, stated in the course of his cross-examination that it was true that Dhruva was a devotee of God, that Narsinh Mehta, Prahlad and Meera were also the devotees of God but there was difference between them and Dhruva. He stated that it was true that whoever was the devotee of God was dear to all and that they were dear to Hindus.

15. The Swatantra Party candidate has given evidence in this case, his evidence being Exhibit 147. In the course of his evidence he has stated as under :

'I cannot definitely say that at my Vaso office a board might have been fixed to show that my election symbol was the star of Dbruva'.

He has further stated that it was true that Dbruva was considered as a devotee of God by Hindus. He however has further stated as under :

'I do not know whether people are under the belief that God Vishnu bad given him an eternal place. It is not true to say that the star of Dhruva is worshipped by the newly wedded couple soon after 'Saptapadi' but the only thing which is said at this time is this that the newly wedded couple should look at the Dhruva Star so that the married life would remain as the star of Dhruva. It is not true that at the time of Vastu ceremony the star bf Dhruva is installed.'

It is clear from the references to Shrimad Bhagwat, Vishnu Purana and Maha Bharat and the evidence of some of the witnesses that Dhruva, to, the mind of some of the Hindus, is that great personage who, as a result of his great devotion and bis penance, had pleased Lord Vishnu to such an extent that Lord Vishnu made himself manifest to him and ultimately he became the Star of Dhruva in the region of Vishnu where he eternally shines. According to the Hindu mythology as expounded in Shrimad Bhagwat and Vishnu Purana, it is the pious devotee Dhruva who has been raised to 'Vishnupad', the region of Vishnu and who now shines as the Star of Dhruva. According to this belief, the Star of Dhruva is no other than the devotee Dhruva himself. It is not as if Dhruva, the devotee, has been given a place on a pre-existing star or that any existing star has been named after Dhruva. The Star, of Dhruva is Dhruva, the great religious personage himself. When an appeal is made to the voters by the Swatantra Party to vote for 'Dhruva no Taro' it is an appeal to vote for Dhruva, the great religious personage, and the five-fold description of Dhruva' given by the Swatantra Party is the description of this personage Dhruva and it is in his name that an appeal has been made to cast votes for the Swatantra Party and such an appeal could not but be regarded as an appeal to a religious symbol. When the Swatantra Party turned the real election symbol of a star of no appeal into the Star of Dhruva of great religious appeal it was with a view to secure votes of the Hindu electorate conversant with the story of Dhruva as given in Shrimad Bhagwat and in Vishnu Purans for the Swatantra Party candidates and further their prospects at the election and to prejudicially affect the election of other candidates. It is' urged by the learned Advocate General, who appears on behalf of the Swatantra Party candidate, that in order to amount to a corrupt practice, it must be shown that the symbol used is a religious symbol. He urges that the expression 'religious symbol' as used in Section 123(3) must be understood in the sense of a symbol representing religion. He urged that the star of Dhruva represented no religion. In support of his contention, he referred to the words in the section which follow those relating to religious symbols. He argued that by Sub-section (3) of section 123, the use of or an appeal 'to national symbols, such as the national flag or the national emblem' for the furtherance of the prospects of the election of the candidate concerned or for prejudicially affecting the election of any candidate has also been regarded as constituting corrupt practice. He urged that the national flag was a national symbol inasmuch as it represented the nation and that the national emblem was a national symbol inasmuch as the national emblem represented the nation. By analogy, he sought to argue that a religious symbol must represent some religion. Just as the crescent and star represent a religion, so a Dhruva star, before it could be held to be a religious symbol, must represent some religion. He said that according to Hindu popular beliefs, Dhruva was a devotee of God and not God himself, and as the symbol of Dhruva star was not the symbol of God, it could not be a religious symbol. We are unable to agree that a symbol, in order to be a religious symbol, must symbolise God. There are many symbols which have in fact been held to be reli-gious symbols without symbolising God. The symbol of Nandi has been regarded as a religious symbol though no one can say that Nandi is God. There can be religious symbols without the symbols being said to represent a religion. The word symbol has been defined in Encyclopaedia Britannica, 14th Edition as under: --

'The term given to a visible object representing to the mind the semblance of something which is not shown but realised by association with it. One of the first symbols of the Saviour, the fish, was derived from an acrostic of the Greek word expus the component letters of which were the initials of the five words, 'Inoovs Xpioros, Oeov Rios, Zarnp. Jesus Christ, Son of God, Saviour. The ship, another early symbol, represented the Church, in which the faithful are carried over the sea of life. Other symbols are those which were represented by animals, real or fabulous, and were derived from Scripture; thus the lamb typified Christ from St. John's gospel (1.29 and 36), and the lion from the Book of Revelation, where (v. 5) Christ is called the 'Lion of the tribe of Juda'. The peacock stood for immortality; the phoenix for the Resurrection; the dragon or the serpant for Satan; the stag for the soul thirsting for baptism. The sacred monogram Chi Rhe, P supposed to have been the celestial sign seen by the Emperor Constantine on the eve of the defeat of Maxentius, represents the two first letters of the Greek word Xpioros which Constantine figured on his labarum, or standard, and is found on early Christian coins bearing also the favourite decoration of the Bysantie sarcophagi'.

In shorter Oxford English Dictionary, 1930 Edition, a symbol is defined as

'2. something that stands for, represents, or denotes something else (not by exact resemblance, but by vague suggestion, or by some accidental or conventional relation); esp. a. material object representing or taken to represent something immaterial or abstract, b. An object representing something sacred; spec, (absol) either of the elements in the eucharist, as representing the body and blood of Christ.'

It cannot be disputed that the star which has been described as the Star of Dhruva was a symbol. In fact, 'star' has been given as a symbol by the Election Commission to the candidates sponsored by the Swatantra Party. Being a symbol, the only question that really falls for consideration is whether by describing this symbol as the Star of Dhruva or 'Dhruva no taro' the symbol has become a religious symbol. The word 'religion' has been defined in . Shorter Oxford English Dictionary inter alia as

'3. action or conduct indicating a belief in, reverence for, and desire to please, a divine ruling power; the exercise or practice of rites or observances implying this. Also pl. Religious rites, X X X X 5. Recognition on the part of man of some higher unseen power as having control of his destiny, and as being entitled to obedience, reverence and worship; the general mental and moral attitude resulting from this belief, with ref. to its effect upon the individual or the community; personal or general acceptance of this feeling as a standard of spiritual and practical life. x x x 6. Pevo-tion to some principle; strict fidelity or faithfulness; conscientiousness; pious affection or attachment.'

In Stroud's Judicial Dictionary, Third Edition, under the heading 'What is religion' it is observed as under :--

'Is it not what a man honestly believes in and approves of and thinks it his duty to inculcate on others, whether with regard to this world or the next? A belief in any system of retribution by an overruling power? It must, I think, include the principle of gratitude to an active power who can confer blessings.'

The term ''religious purposes' has been stated in the Stroud's Judicial Dictionary, to mean 'purposes conducive to the advancement of religion'. In Shorter Oxford Dictionary, the term 'Religious' used as an adjective, has been stated to mean

'imbued with religion, exhibiting the spiritual or practical effects of religion, pious, godly; xxx of the nature of, pertaining or appropriate to, concerned or connected with, religion.'

A symbol is religious if it has a religious significance. It is not necessary that the symbol must symbolise God. A religious symbol may symbolise the power of God, and may represent a belief, in the religious efficacy of certain practices which may lead to the realisation of God, or which may lead to what is styled heaven or 'Swarga' or which may lead to freedom from rebirth having regard to the religious belief of persons. The symbol of the Star of Dhruva, the personage, about whom references have been made in the Shrimad Bhagwat and Vishnu Purana, is a symbol which would bring to the mind's eye the efficacy of devotion to Lord Vishnu, which would bring to the mind's eye what Lord Vishnu would do when he finds a mortal doing penance and devoting himself with singleness of purpose to the Lord. It symbolises what could be attained as a result of devotion to Lord Vishnu. The Star of Dhruva represents Dhruva himself and this symbol of Dhruva cannot but be regarded as a religious symbol. It is a symbol which is intended to invoke religious sentiments. It is a symbol which has a religious association connected with it. In our view, having regard to the popular notions about Dhruva, having regard to the beliefs of a section of the people of this country as regards Dhruva, having regard to the fact that even the very recitation of his name or the narration of his doings or the very fact of having listened to such narration is regarded as an act destructive of all sins and as leading to 'Swarga', it cannot be said that this symbol is any other than a religious symbol. When considering whether a symbol is a religious symbol, one has not to consider what appeal that symbol has on the non-religious or the irreligious or on those on whom a particular religion or a particular religious belief has no appeal. One is not to consider what appeal it would have on those who do not believe or consider that the symbol is sacred. In considering whether a symbol is a religious symbol, a judge has not to bring to bear upon the problem his individual beliefs or sentiments. What the Court has to consider is whether there is a section of the electorate in the constituency in question to whom the symbol is religious, to whom the symbol has a religious appeal, in whose mind religious sentiments or associations are attracted by that symbol. The symbol of Nandi or the representation of Hanuman may not constitute a religious symbol to those to whom Nandi is not sacred, or to those who do not believe that the worship of Hanuman would bring any benefit. The symbols would still be religious symbols so long as there are sections of the public to whom the Nandi and Hanuman are sacred.

16. The learned Judge, in the course of his Judgment, has, after stating that Dhruva is the Hindu mythological figure held in veneration by the Hindus and a.fter setting out the story of Dhruva, observes as follows:-

'the word 'Dhruva' is a Sanskrit word having its derivation from the root 'Dhru' (meaning to hold'). The word 'Dhruva' is not always used as a proper noun because its literal meaning is 'permanent' and is often used as an adjective'. Thereafter the learned Judge proceeds to recite various verses in Sanskrit which give the meaning of the word 'Dhruva' used as an adjective, We are not concerned in this case with the use of the word 'Dhruva' as an adjective. The words 'Dhruva no taro' do not contain the word 'Dhruva'. used as an adjective. The word 'Dhruva' is used as a proper noun and with respect it would not be very pertinent to consider the meaning of the word 'dhruva' used as an adjective. The learned Judge has further stated that so far as Gujarati language was concerned, this expression was also used for denoting the two poles of the earth, viz., the north pole and the south pole and that this aspect was necessary to be borne in mind. When the words used are 'Dhruva no taro', the reference to north pole or the south pole does not seem material. The learned Judge in dealing with the matter has expressed himself in terms following: - 'It is thus evident that when the whole ex-presioir 'religious symbol' is taken into account, it should meandsomething which not only pertains to or sets forth religion but also definitely stands for or represents it. It is already noted that the ease of the petitioner is that describing the symbol of star as the star of 'Dhruva' amounts to representing it as symbol of the religious mythological, figure 'Dhruva' and to stating that the vote for this symbol is a vote for 'Dhruva'. If this is found to be the only interpretation, which can be put to description of the symbol as the symbol of Dhruva then I would not hesitate in agreeing fully with the petitioner. But if it is found that this is not the only interpretation, which can be put to the description of the symbol and that some other interpretation which would be totally innocuous and legitimate can also be put to this description, then it would not be possible for me to come to the conclusion that the first respondent has committed any corrupt practice as contemplated by Sub-section (3) of Section 123 of the Act. It follows, therefore, that in cases where a particular step taken by a candidate is liable to two interpretations having equal force, the candidate concerned would surely be entitled to contend that the corrupt practice in question is not proved beyond reasonable doubt and the election should not be lightly set aside.'

We are in full agreement with the learned Judge that an election should riot he lightly set aside. But the learned Judge has, in coming to the con-clusion to which he has arrived at, led himself into this fallacy that if a symbol was a religious symbol to some and was not a religious symbol to others, then it could not be said that the candidate was guilty of using a religious symbol. What we have to consider is the effect which the symbol produces on the minds of the public or a section of the public. If the symbol has, to a section of the public, a religious appeal, then it is a religious symbol. It is not necessary that the sym-bol must be a religious symbol to all the electors. It is not a question of considering merely the intention of the person using it. When considering whether a symbol is a religious symbol, it is not the subjective view of any particular individual which matters. What matters is whether there is a section of the electors in the constituency concerned which regards the symbol as sacred or religious. Even a non-religious or an irreligious person may use a symbol as a religious symbol to attract the votes of those who regard the symbol as a religious symbol. If an atheist candidate to whom the symbol of the crescent and star may not have any religious appeal, uses that symbol to attract the votes of Muslim electors in his constituency, he would still be guilty of having used a religious symbol. We are unable to agree with the reasoning of the Teamed Judge who, after accepting that the sym-bol would be a religious symbol to some, still considers that when the Swatantra Party candidate ased that symbol, it was not a religious symbol.

17. Several cases have been cited for the purpose of showing what have been regarded as religions symbols. A reference in this connection may be made to the case reported in 22 Ele LR 1, in the case of Shubnath Deogram v. Ram Narain Prasad. It is a decision of the Supreme Court and the same is also reported in 1960 (i) SCR 953 : (AIR 1960 5C 148). In that case, the appellant before the Supreme Court belonged to the Adibasi community and was put up as a candidate by the Jharkhand party whose symbol was a cock, and was declared elected. The main allegation in the election petition to set aside the election of the appellant was that he had committed the corrupt practice of making an appeal on the ground of religion by circulating leaflets contain ing the words following :-

'In the box of the Jharkhand Party is printed the symbol of Cock, Put your, votes in the box with Cock symbol 'O' rise ye children of men --

Respected sons of men open your eyes, lend your ears Recognise me and my crow, In your services and worships in the Worship of your forest God (Burn)

In stomach pain and headache

At the time of your distress and miseries I am with you even after giving my life. You recover (from illness) 'even by applying knife at my neck. This thought gives me pleasure. In exchange of this give me chara in the shape of vote. I am victorious. Do not forget me, otherwise I tell, ye sons of men will suffer eternal miseries. Crow of Cock, Cock crowed, rise now, open Your eyes, be prepared for duty. Yours only Cock.'

Both the Courts below had arrived at the conclusion that the cock was no religious symbol of Adi. basis but it formed an integral part of religious ceremonies which they performed while worshipping some of their important deities, that cocks were sacrificed before those deities to get happiness and to get rid of miseries that a cock was kept tied for two days without any food and on the day of the sacrifice it was taken to the 'Puja asthan' where some rice was put and after prayers to the Bongas, namely, the deities, for getting happiness and to get rid of miseries, the cock was placed near the rice. If the cock pecked at the rice, the Adibasis considered their Bongas to be pleased. They thereafter sacrificed the cock. If the cock di'd not peck at the rice, they considered their deities to be displeased and prayers were offered until the cock pecked at the rice when it was sacrificed. It was urged that what was meant by the leaflet was that like the sacrificial cock, the candidate that is the appellant, was prepared to lay his life down for the good of the community. Sarkar, J., who delivered the majority judgment of the Court, held that there was nothing in any of the leaflets to convey that meaning. He held that it was an appeal on the ground of religion, for the substance of it was that it would be an irreligious act not to vote for the, particular party and that it would then be a corrupt practice of a systematic appeal on the ground of religion. In the course of his minority judgment, Subba Rao, J., has observed that what was essential was that the appeal should expressly or by necessary implication seek votes on the ground of religious affinity or religious conflict, that the section was not intended to prevent appeals in picturesque or metaphorical language drawing analogies from mythology or religion or folklore. He has further observed that when most of the voters are illiterate, the candidate or his agent can attract and enthuse the audience or drive home his points only by parables, similes or metaphors drawn particularly from religious lore which most of the people understand and appreciate, that 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, that a candidate may appeal to the electorate consisting of persons professing different religions, say Hindus, Mahommadans, Christians, etc., to vote for him and say that he would sacrifice his life in the cause of his constituency just like Christ sacrificed his life to redeem the world; that he may also say that like Rama, the virtuous, who killed Havana, the 'rakshasa', the embodiment of evil, he would, if elected, put down corruption, nepotism and the like in Government. The minority view held by Subha Rao, J., was that the document was capable of two interpretations. One gave it an understandable content and the other imputed to it a confusion of ideas involving corrupt practice and that he preferred to read the the document in a way beneficial to the elected candidate. The observations made even in the minority judgment show that what may be permissible is the seeking of votes in graphic or picturesque language with analogies from religious lore. It may be possible for a candidate to say that if elected, he will stick to the principles of the Swatantra Party as resolutely as Dhruva, or that he would adhere to what had been stated in the election manifesto as firmly as Dhruva, or that he devoted to the electorate after being elected with the same steadfastness as shown by Dhruva to Lord Vishnu, but that is far from saying that the electorate should vote for Dhruva. The appeal in the present case is not an impersonal appeal or an appeal to virtues but an appeal in the name of Dhruva. the devotee of God, who had become immortal. It is an appeal based on religious sentiments and not an appeal based on reason and logic. The learned Advocate General has distinguished this case, and in our opinion rightly. He contends that this is a case which refers to an appeal by a candidate to religion. The judgment in this case does not proceed on the footing that the symbol of the cock was a religious symbol.

18. In the case reported in 19 Ele LR 278 : (AIR 1955 Orissa 188) in the case of Abdul Rahiman Khan v. Radha Krushna Biswas Roy, The Orissa High Court held that the circulation of a booklet containing a statement that the bullock, which was the symbol of the Congress party, was the 'Vahana' of Lord Shiva and a deity of Hindus, and therefore, all must vote for the Congress, amounted to the corrupt practice of systematic appeal on the ground of religion and use of a religious symbol within the meaning of the then Section 123 (3) of the Representation of the People Act, 1951. At page 293 of the judgment (of Ele LR) : (at p. 192 of AIR), it has been observed that systematic appeals were carried on by the respondent in that rase through the use of religious symbols by saying that the Congress box carried the emblem of bullocks which are the carriers of Lord Mahadev and as such the electors should vote for him. One of the poems used in connection with the election in a stanza stated -- 'The bullock is your deity in whom you should always have faith.' In the course of the judgment, at page 296 (of Ele LR' (at p. 193 of AIR), it has been observed as under:-

'It will be sufficient to state that the bullock has been described as the 'Bahan' of Lord Shiva in Exhibit 5 and as such has been used as a religious symbol.'

The High Court of Orissa set aside the judgment of the Election Tribunal which had held that the Congress symbol had been recognised by the Election Commission and consisted of a pair of bullocks with a plough and that the interpretation that was alleged to have been placed before the electors might constitute a religious appeal if anything, but it could not come within the ambit off the words 'use of or appeal to religious symbol'.

19. Another case which has been referred to at the Bar is the one reported in AIR 1961 Mys 106, in the case of Sangappa Andanappa v. Shiva-murthiswamy. The Mysore High Court held in that case that an appeal to lingayat voters of the constituency equating the Congress symbols, of yoked bullocks with 'Shiva's Nandi' the mount of God and also Kalyana Basava, and entreating them to vote for a particular Congress candidate on the ground that the votes recorded for the Congress candidate would really be votes recorded for Shiva's Nandi or Kalyana Basava would not only constitute undue influence falling within Sectioa 123 (2) but also a systematic appeal on grounds of religion or caste falling within Section 123(3) of the Act. In the course of the judgment it was elucidated that Kalyana Basava was a great reformer of the Veerasaiva religion. It has been observed in that case as follows :-

'If it was represented to the voters that the bullocks forming the Congress symbol was the mount of Shiva or have to be regarded as the same as Nandi who is the mount of Shiva, it cannot be denied that the appeal that was made to the voters would be an appeal that votes have to be cast in favour of the Congress symbol because the Congress symbol represents the mount of God.'

20. Another case referred before us was the one reported in 17 Ele LR 37 (Bom), in the case of Shivrarn Sawant v. Pratap Rao Deorao. In that case the symbol 'Jai Shamboo' which was the motto of the State of which the candidate was the ruler and was used by the State in official documents and in the official gazette of the State and which was also used as a personal motto of the candidate, was used on badges issued to the candidate's volunteers and in some printed matter in his election campaign, It was held that in the absence of any allegation and proof that the symbol was used in furtherance of the prospects of the election, the candidate could not be held guilty of a corrupt practice under Section 123(3). In that case it has been stated by the learned Judges that the expression 'religious symbol' can well include special flags of temples and articles of deity of a temple.

21. A reference was made to a decision reported in 20 Ele LR 221 (All), in the case of Riistom Satin v. Dr. Sampoornanand. It was held in that case that distribution of pictures, displaying the election symbol of the Congress with the figures of Annapurnaji or Bhagwan Viswa-nathji constituted use of religious symbols within Section 123 (3) of the Act. At page 246 of the report, the learned Judges observe as follows :-

'Annexure B-1 contains a coloured picture of the goddess 'Annapurnaji' on the front, and a standing picture of Mahatrna Gandhi carrying a stick, on the back. Annexure B-2 contains a picture of the symbol of Bhagwan Viswanath Ji with a priest sitting by the side of it on the front, and a standing picture of Mahatma Gandhi carrying a stick, on the back, while annexures B-3 and B-4 contain coloured pictures of the symbol of Bhagwan Viswanathji with two priests sitting by its side on the front and a standing picture of Mahatma Gandhi carrying a stick on the back. All these pictures display the election symbol of the congress (namely, two bullocks and yoke} on the front side. So far as these annexures are concerned, particularly annexures B-2, 8-3 and B-4 we have no doubt that they contain religious symbols of the kind prohibited by Section 123(3) of the Act.'

22. Some of these cases do go to show that in order to 'be a religious symbol, the symbol need not represent a deity. In order to be a religious symbol, it must be a symbol with a religious appeal. It must be a symbol which should arouse religious sentiments of the voters. It must be a symbol whereby religious susceptibilities of the voters are activated. In the present case, the plain symbol of a star has been invested with the hallow of religion by, the description of the star ae 'Dhruva no taro'. Having considered ail aspects of the matter, we are of the view that by describing the symbol of star given by the Election Commission as 'Dhruva no taro' or the Star of Dhruva, those who have done it, have converted a secular symbol into a religious symbol.

23. The next question that we will have to consider is whether the use of this symbol or appeal to this symbol has been made for the furtherance of the prospects of the election. of the Swatantra Earty candidate or for prejudicially affecting the election of other candidates. There can be no doubt that the piain secular symbol star has been converted into a religious symbol in connection with the election for the purposes of the election and that the same could only be for the furtherance of the prospects of the election of the candidate sponsored by the Swatantra Party, and for prejudicially affecting the flection of other candidates. Even the wall publicity shows that the electors are asked to vote for the Star of Dhruva. The leaflets which have been distributed among the electors show that an appeal to the electorate has been made to vote for the Star of Dhruva.

24. What has been stated above is sufficient for the purpose of showing that a religious symbol has been used and an appeal to a religious symbol has been made for the furtherance of the prospects of the election of the Swatantra Party candidate and for prejudicially affecting the election of the other candidates and would constitute corrupt practice within the meaning of Section. 123(3) of the Representation of the People Act, 1951.

25. The next question that requires consideration is whether such corrupt practice has been committed by the Swatantra Party candidate or by any other person with the consent of the Swatantra Party candidate, within the meaning of Section 100(1)(b) of the Representation of the People Act, 1951. We shall first deal with the evidence on the subject and then consider the legal position having regard to the facts elucidated by the evidence.

26-29. (His Lordship after discussing the evidence proceeded:) The evidence establishes that the Swatantra Party of Gujarat carried on an election campaign in support of the candidates sponsored by it. The election campaign had started prior to 19th January, 1962, the date when the Swatantra Party candidate before us filed his nomination paper. That campaign was continued subsequently. It was as a part of that campaign that the symbol of the Swatantra Party and its candidates has been represented to the electorate as the Star of Dhruva and the campaign has been carried on for appealing to the electors to cast their votes for the Star of Dhruva. The appellant before us, when he accepted the Swatantra Party ticket, knew about the election campaign that had been carried on by the Swatantra Party and the further fact that the Swatatra Party was using for the purpose of its election campaign the Star of Dhruva as its symbol which, as we have already stated, is a religious symbol and was making appeals to such a symbol. The Swatantra Party could be regarded as the agent of the 'appellant before us for the purpose of carrying on the election campaign and for the purpose of seeing that the candidates sponsored by it came out successfully at the polls. The Swatantra Party could be regarded as a party guilty of corrupt practice in connection with the election. The appellant before us accepted the ticket of that party with the knowledge of its practices. There is no evidence to show that he, did not desire that the Swatantra Party should carry on its campaign in his constituency in the manner in which the Swatantra Party had been doing. The appellant had accepted as his agent the Swatantra Party which to his knowledge was using a religious symbol and was making an appeal to such symbol for the furtherance of the prospects of the election of the candidates sponsored by that party. Having so chosen his agent and knowing that with the day of the poll approaching near, in the ordinary course the election campaign would grow in momen-tum, he accepted the Swatantra Party ticket, without taking any steps to see that the Swatantra Party did not carry on its election campaign contrary to the requirements of the law. Under the circumstances, he must be regarded as having assented to his agent, the Swatantra Party, continuing to use a religious symbol and appeal to a religious symbol for the purpose of the furtherance of the prospects of the election of the Swatantra Party candidates including the appellant before us, who had accepted the Swatantra Party ticket and for prejudicially affecting the election of other candidates.

30. Several auhorities were cited at the Bar in connection with the law of agency. It is 'not disputed that the Swatantra Party was the agent of the appellant before us for the purpose of election. What was however contended was that the assent of the appellant before us cannot be implied as regards any acts which constitute corrupt practice on the part of the Swatantra Party from the mere circumstance that the Swatantra Party was the agent of the appellant for the purpose of the election. From the mere fact that an agent may be guilty of corrupt practice, one cannot impute consent of the principal thereto. An agent may be guilty of currupt practice contrary to and even against the express wishes of the principal. What we have to see is whether under the circumstances of the present case, having regard to what the agent had been doing prior to the acceptance of the agency, with every probability of the agent continuing in the same manner as before after the agency had been accepted, it could be said that there was the consent of the principal to the act of corrupt practice committed by the agent when the agent, not being merely the agent of one individual but being the agent of various persons in the State who had been sponsored by the agent, continued its activity as before in the furtherance of the prospects of the election of various persons who had accepted its agency and tickets. A reference in this connection has been made to a case reported in 19 Ele LR 175 : (AIR 1959 Assam 200), in the case of Nani Gopal Swami v. Abdul Hamid. It is a decision of a Division Bench of the Assam High Court. Chief Justice Sarjoo Pra-sad who delivered the judgment of the Court has, in that case held that for the purposes of the Representation of the People Act, 1951, the expression 'agent' had a much wider connotation than it is ordinarily understood to have under the law of contract. Anybody who acts in furtherance of the prospects of the candidate's election may be said to be an agent of the candidate concerned, provided he does so with the consent of the candidate. This consent need not be necessarily an express consent and no written document is necessary. The same may be gathered and implied from the circumstances of the case. An 'agent' includes not only a person, who has been specifically engaged by the candidate or his election agent to work for him in the election, but also a person who does infact work for him and whose services have been accepted by the candidate. An association of persons or a society or a political party and its prominent members who set up the candidate, sponsor his cause and work to promote his election, may be aptly called the 'agents' oi the candidate for election purposes.

31. In the case of Inder Lall Yugal Kishore v. Lal Singh Mukund Singh, reported in AIR 1961 Raj 122, Chief Justice Sarjoo Prasad, who had then become the Chief Justice of the High Court of Rajasthan, had to deal with an election matter. He accepted the allegation of the petitioner in that case that the Campaign was at the instance of the Nagar Congress Committee with a view to advance the interest of the contesting respondent at the election and that his candidature has been sponsored by the organisation. Following his earlier judgment, which he had given when he was the Chief Justice of the Assam High Court, he held that an association of persons or a Society or a political party or its permanent members who set up a candidate, sponsor his cause, and work to promote his election, may be aptly called the agent of the candidate for election purposes, and that the District Congress Committee, Chittorgadh and the Nagar Congress Committee there with their Secretaries and Publicity Secretary were all agents of the contesting respondent in that case. There are some passages in that judgment to which the learned Advocate General has taken exception. It is not necessary for us to consider the same. We are only referring to that case as an authority for the proposition that a party who sponsors the candidature of a candidate at an election could well be regarded as the agent of the candidate for the purpose of the election.

32. The consent that is required under the provisions contained in Seition 100 (1) (b) can be either express or implied. The consent may be implied from the surrounding circumstances. In the present case, having regard to the facts that have been established, we cannot but come to the conclusion that the use of a religious symbol and the appeal to a religious symbol for the furtherance ot the prospects of the election of the Swatantra Party candidate and for prejudicially affecting the election of the other candidates had been made with the consent of the Swatantra Party candidate before us.

33. The learned Advocate General has very forcibly argued that the consequences of holding that the election is void on the ground that a corrupt practice has been committed, would be to place the person found guilty of such corrupt practice under the disabilities provided by the Act. He urged that the proceeding in this connection was a quasi criminal proceeding and that we must be satisfied beyond reasonable doubt that the appellant before us was guilty of corrupt practice or that corrupt practice had been committed by any other person with the consent of the appellant. The Supreme Court has, in the case reported in 12 Ele LR 461 : ((S) AIR 1957 SC 444), in the case of Harishchandra Bajpai v. Triloki Singh, held that the charge of corrupt practice was of a quasi criminal character; Bearing that in mind, we have carefully considered whether the corrupt practice committed by the Gujarat Swatantra Party in the present case could be regarded as having, been committed with the consent of the appellant before us. As we have already observed, it is not necessary that express consent has to be proved. The consent may be implied. The circumstances in the present case adverted to by us leave no room for doubt in our minds that the appellant before us had consented to the commission of the corrupt practice by the Gujarat Swatantra Party which had sponsored his candidature and whose ticket he had accepted.

34. There are several other points on which the election of the Swatantra Party candidate had been challenged before the Election Tribunal. Mr. Daru, the learned advocate for the first respondent before us, has been content with arguing the case of the first respondent before us on the basis of a corrupt practice being committed by the Swatantra Party with the consent of the Swatantra Party candidate. He has not pressed the other points or other arguments into service. The matter is an election matter and if we had found it necessary we would have gone into other matters, but it is not necessary for us to do so 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 election with the consent of the appellant before us.

35. The learned advocate Mr. Amin for the second respondent before us supported the contention of the appellant before us in connection with his client's age. He also sided with the appellant in contesting the claim advanced on behalf of the first respondent before us that the election was liable to be declared void on account of the aforesaid corrupt practice having been committed with the consent of the appellant. He urged that Hinduism as such cannot be regarded as a religion, that there was no religion of Dhruva, that the reference in mythology to Dhruva was purely allegorical and in picturesque language represented the movements of various stars, that Vishnu Puran broadly understood, represented history, geography and astronomy and that it cannot be said that there was use made of any symbol which could be regarded as a religious symbol or that there was an appeal to a religious symbol. According to him, Dhruva represented the Polar Star and the description of Dhruva was a description of what the Polar Star stood for and that the appeal was to the qualities of a star and not to the qualities of any individual. He said that in order to constitute a symbol into a religious symbol it must represent some religion by association of ideas, He said that the Cross may represent Christianity, the crescent and a star may represent Islam, but the Star of Dhruva represents no religion. For the reasons stated by us in the earlier part of the judgment, we cannot accept the argument of Mr. Amin on this point that in order that a symbol may be a religious symbol it should represent some recognised religion. We are unable to accept the contention that in converting the star of no appeal into the Star of Dhruva, the Swatantra Party had not converted a secular symbol into a religions one.

36. Under the circumstances, we dismiss the appeal and confirm the order declaring the election of the appellant to be void on grounds stated in our judgment. We direct that the substance of the decision be communicated forthwith to the Election Commission and the Speaker of the Gujarat Legislative Assembly and that an authenticated copy of the decision be sent to the Election Commission.

37. As regards costs, the appellant has succeeded in establishing that the second respondent was duly qualified to stand for election. The appellant has lost on the ground of corrupt practice committed with his consent. The fair order under the circumstances to make would be that each party should hear and pay its own costs throughout.


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