Supreme Court of India
AZHAR HUSSAINversusRAJIV GANDHI
- Citation
- 1986 INSC 94
- Decided
- 25 April 1986
- Disposal
- Dismissed
- Bench
- E S VENKATARAMIAH
Holding
An election petition that omits material facts and particulars required by Section 83 does not disclose a cause of action and may be summarily dismissed under the Code of Civil Procedure, and the High Court’s dismissal was proper.
Summary
The respondent was elected to the Lok Sabha from Amethi in the 1984 general election. An elector filed an election petition alleging several corrupt practices, but the petition failed to disclose material facts and particulars required by Section 83 of the Representation of the People Act, 1951. The High Court dismissed the petition on the ground that it did not disclose a cause of action, invoking the powers of the Code of Civil Procedure. On appeal, the Supreme Court held that non‑compliance with Section 83 is a fatal defect that justifies summary dismissal under Order 7 Rule 11 and Order 6 Rule 16 of the CPC, and that the High Court’s decision was correct. The Court also ruled that amendment could not cure the defect and that the limitation period precluded any fresh petition. Consequently, the appeal was dismissed.
Issues considered
- The petition’s failure to incorporate material facts and particulars under Section 83, and whether this warrants summary dismissal.
- Whether the High Court could exercise CPC powers (Order 6 Rule 16, Order 7 Rule 11) to dismiss an election petition at the threshold.
- Whether Section 86 limits summary dismissal only to non‑compliance with Sections 81, 82, 117, excluding Section 83.
- Whether amendment of the petition could cure the defect of lacking material facts.
- Whether the dismissal should be treated as a rejection or dismissal in view of the limitation period.
Legislation cited
- Code of Civil Procedure, 1908s. Order 6 Rule 16, s. Order 7 Rule 11
- Indian Evidence Act, 1872
- Representation of the People Act, 1951s. 100, s. 101, s. 117, s. 123(4), s. 123(7), s. 80, s. 81, s. 82, s. 83, s. 86, s. 87
Subjects
election petitionsummary dismissalmaterial factscorrupt practiceRepresentation of the People ActCode of Civil Procedurecause of actionlimitation period
Judgment
782
A AlHAR RUSS\IN
v.
RAJIV G\Nllll
APR_IL_ 25, 1986
[E.S. VENK<\.'t<\.R<\.Mr&q AND M.P. 'Il!AKKAR, JJ.]
B
Representation of the People Act, 1951 :
Section 80 to 83, 86 & 87 - Election Petition -
Mandatory requirerent to furnish nnterial facts and
particulars - Non compliance - Summary dismissal of election
c petition - What are nnterial particulars to be incorporated in ~Jill.
an Election Petition. . I
H
Civil Procedure Code, 1908 - Order 6 Rule 16 and Order 7 -
Rule ll(a) - Election Petition - Applicability of.
D The respondent having secured the highest votes in the
1984 general eiections was declared elected as a Member of the
Lok Sabha from -the Amethi Constituency of Uttar Pradesh. Ot\
the last date for challenging the election, the appellant, an
elector from that constituency filed an election petition"-
challenging the election of the respondent alleging various
E corrupt practices. The respondent upon being served, instead
of filing a written statement, raised preliminary objection
to the maintainability of the petition contending that the
petition was lacking in material facts and particulars and was
defective on that account, and that since it did not disclose -t
any cause of action it deserved to be dismissed.
F
The High Court upheld the preliminary objection of the -+-.-
respondent and dismissed the petition. \
In _the appeal to this Court on behalf of the appellant
it wa11 contended : ( 1) that where the legislature wanted to
G provide for summry dismissal of the election petition-, the
legislature has spoken on the matter and that the intention
was to provide for sW111Bry dismissal only in case of failure +
to comply with the requiremant of sections 81, 82 and 117 and
not section 83; (2) that the powers to reject an election
petition sU1J11Brily under_the provisions of the Code of Civil
H
AZHAR HUSSAIN v. RAJIV GANDHI 783
A
Procedure should not be exercised at the threshold, and that
the Court IDlSt proceed with the trial, record the evidence,
and only after the trial of the election petition is concluded
that the powers under the Code of Civil Procedure for dealing
with the defective petition which does not disclose cause of
action should be exercised. B
Dismissing the appeal,
llKLD : l. The results of an election are subject to
judicial scrutiny and control only with an eye on two ends.
First, to ascertain that the 'true' will of the people is
reflected in the results and second, to secure that only the c
persons who are ·eligible and qualified under the Constitution
obtain the representation. In order that the "true Will" is
asce.rtained the Courts will step in to protect and safeguard
the purity of Elections, for, _if corrupt practices have
influenced the result, or the electorate has ~en a victim of
fraud or deception or compulsion on any essential matter, the D
will of the people as recorded in their votes is not the 'free
and true' will exercised intelligently by deliberate choice.
It is not the will of the people in the true sense at all. And
the Courts would, therefore, be justified in setting aside the
. ~
election in accordance with the law if the corrupt practices
are established. So also when the essential qualifications for E
eligibility demanded by the constitutional requirement are not
fulfilled, the fact that the successful candidate is the true
choice of the people is a consideration which is totally
irrelevant notwithstanding the fact that it would be virtually
impossible to re-enact the elections· and reascertain the
t wishes of the people at the fresh elections, the time scenario F
having changed. (788 B-F]
1.1 In matters of election the will of the people IDlSt
prevail and Gour.ts. would be understandably extremely slow to
set at naught the will of the people truely and freely
exercised. If Courts were to do otherwise, the Courts would be G
pitting their will against the . will of the people, or
countermanding the choice of the people without any object,
aim or purpose. But where corrupt practices are_established
the result of the election does not echo the true voice of the
people. The Courts would not then be deterred by the aforesaid
considerations which in the corruptior-scenario lose H
784 SUPREME COURT REPORTS (1986] 2 s.c.R.
A
relevance. Such would be the approach of the Court in an,
election matter where a corrupt practice is established. ~
(788 F-H; 789 A]
2. Undisputedly, the Code of Civil Procedure applies to
the trial of an election petition by virtue of section 87 of
the Representation of People Act of 1951, and so the Court
B
trying the election petition can act in exercise of the powers
of the Code including Order 6, Rules 16 and Order 7, Rule+
ll(a). The fact that a reference to section 83 does not find a
place in section 86 of the Act does not mean that power under
the Civil Procedure Code cannot be exercised. (792 D-E; 793 Fl
c 3. An election petition can be summarily dismissed if it
does not furnish cause of action in exercise of the powers
under the Code of Civil Procedure. So also appropriate orders ~
in exercise of powers under the Code of Civil Procedure can ,
be passed if the mandatory requirement enjoined by section 83/'
of the Act to incorporate the material facts in the election •,
D
petition are not complied with. (794 F-H]
3.1 Even in an ordinary Civil litigation the Court
readily exercises the power to reject a plaint if it does not
disclose any cause of action, or the power to direct the _.
concerned party to strike out unnecessary, scandalous,
E
frivolous or vexatious parts of the pleadings. Or such plead-
ings which are likely to cause embarassment or delay the fair
trial of the action or which is otherwise an abuse of the
process of law. An order directing a party to strike out a
part of the pleading would result in the termination of the -;
case arising in the context of said pleading. The Courts in
F'
exercise of the powers under the Code of Civil Procedure can
also treat any point going to the root of the matter such as
one pertaining to jurisdiction or maintainability as a
preliminary point and can dismiss a suit without proceeding to
record evidence and hear elaborate arguments in the context of
such evidence, if the Court is satisfied that the action would
G
terminate in view of the merits of the preliminary point of
objection. Such being the position in regard to matters per-
taining to ordinary Civil litigation, there is greater reason ,.
why in a democratic set-up, in regard to a matter pertaining
to an elected representative of the people which is likely to
inhibit him in the discharge of his duties towards the Nation,
the controversy is set at rest at the earliest if the facts of
the case and the law so warrant. (795 H; 796 A-<:; 797 D-E]
AZHAR IIDSSAIN v. RAJIV GANDHI 785
3.2 Since the Court has the power to act at the
threshold, the powers 1111st be exercised at the threshold
itself in case the Court is satisfied that it is a fit case
for the exercise of such power and that exercise of such power
is warranted under the relevant provision of law. [797 E-F)
B
4, All the primary facts which 1111st be proved by a party
to establish a cause of action or his def,ence are material
~ ~ facts. The omission of a single material fact would lead to an
incomplete cause of action and an election petition without
the material facts relating to a corrupt practice is not an
election petition at all. [795 B-C; A-B)
c
4.1 Whether in an election petition a particular fact is
material or not and as such required to be pleaded is
dependent on the nature of the charges levelled and the
circW1Btances of the case. All the facts which are essential
to clothe the petition with complete cause of action 1111st be
pleaded and f9ilure to plead even a single material fact would
D
amJUllt to disobedience of the mandate of s. 83(1 )(a). An
election petition, therefore, can be and 1111st be dismissed if
it suffers from any such vice. [795 C-D)
Bardvarl Lal v. ltamnll Singh, [19721 2 s.c.R. 742,
Swnt w. llelkrislma & Anr. v. George Fernandez & Ors., [1969)
E
3 s.c.c. 239, Udbav Singh v. ltadhav Rao Scindia Popatlal
Mmd.lal Joshi & Ors., [1969) 3 s.c.R. 217, relied upon.
5. The pleading in regard to matters where there is
scope for ascribing an alleged corrupt practice to a returned
candidate in the context of a meeting of which dates and
F
particulars are not given would tantamount to failure to
incorporate the essential particulars. And inas1111ch as there
was a possibility that witnesses could be procured in the
context of ·a meeting at a place or date convenient for adduc-
ing evidence, the High Court should not even have permitted
evidence on that point. No amount of evidence could cure the
G
basic defect in the pleading and the pleading as it stood 1111st
be construed as one disclosing no cause of action. [806 E-G)
+ Ribar Singh v. Rao Birendra Singh, [1970] 3 s.c.c. 239,
relied upon.
H
786 SUPREME COURT REPORTS [1986] 2 S,C.R.
6. In the instant case, on a scrutiny of the averment\-
A made in the Election Petition it is evident that it is not
pleaded as to who had distributed the pamphlets, when they
were distributed, where they were distributed, to whom they
were distributed, and in whose presence they were distributed,
nte pleading is ominously silent on these aspects. It has not
even been pleaded that any particular person with the consent
of the respondent or his election agent distributed the said
B pamphlets. nte pleading, therefore, does not spell out a caus~ •
of action. (1818 E-G] ·
7, nte election petition, in the instant case, was filed
on the last day on which the election petition could have been
presented, Having regard to the rigid period of limitation ~
c prescribed by section 81 of the Act, it could not have been ·
presented even . on the next day. Such being the admittedy
position, it would make little difference whether the High
Court used the expression 'rejected' or dismissed'. It would
have had some significance if the petition was 'rejected'
instead of being 'dismissed' before the expiry of the
D limitation inasmuch as a fresh petition which contained
material facts and was in conformity with the requirements of
law and which disclosed a cause of action could have been
presented 'within' the period of limitation, nie High Court ,(
was, therefore, perfectly justified in dismissing the
petition, And it makes no difference whether the expression
E employed in 'dismissed' or 'rejected' for nothing turns on
whether the former expression is employed or the latter,
(1821 H; 822 A-DJ
8. nie expression 'corrupt practice' employed in the Act
would appear to be rather repulsive and offensive. It can
F perhaps be replaced ~by a natural and unoffensive expression
such as 'disapproved practices', {1822 D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No, 2774
( NCE) of 1985.
G From the Judgment and Order dated 6th May, 1985 of the
Allahabad High Court in Election Petition No. 2 of 1985. +
Ravi Prakash Gupta, N.M. Popli and Ms. Kirti Gupta for
the Appellant.
H
AZHAR HUSSAIN v. RAJIV GANDHI I THAKKAR, J.] 787
Dr. Y.S. Chitale, M,R. Sharma, S. c. Maheshwari, Ms. A
Rachna Joshi and Dal veer Bhandari for t\·.e Respondent.
lhe Judgment of the Court was delivered by
THAKitAR, J. An election petition having been dismissed
on the ground that it did not comply with the mandatory B
requirement to furnish material facts and particulars enjoined
by Section 83 of the Representation of People Act and that it
did not disclose a cause of action, the election petitioner
has appealed to this Court under Section 116-A of the
Representation of the People Ait of 1951 (Act).
lhe respondent was elected as a Member of the Lok Sabha c
from the Amethi Constituency of Uttar Pradesh in the general
elections held on 24th December, 1984 under Section 15 of the
Act. Having secured the highest votes (3,65,041) the
respondent was declared as elected on December 29, 1984. On
12th February, 1985, the last date from challenging the
election the appellant (who claims to be a worker of the D
Rashtriya Sanjay Manch), an elector from the Amethi
constituency, filed the election petition giving rise to the
present appeal.
lhe election of the returned candidate, respondent
herein, was challenged on the ground of alleged corrupt E
practices as defined by the Act. Seventeen grounds set out in
para 4( I to XVII) of the election petition were called into
aid in support of the challenge. lhe respondent upon being
served, instead of filing a written statement, raised
preliminary objections to the maintainability of the petition
on a number of grounds inter alia contending that the petition F
+ was lacking in material facts and particulars and was
defective on that account, and that since it did not disclose
any cause of action it deserved to be dismissed. lhe appellant
on his part filed two applications for amendment of the
election petition. (None of which was for supplying the
material facts and particulars which were missing). All these G
applications were heard together and were disposed of by the
Judgment under appeal upholding the preliminary objection
+ raised on behalf of the Respondent and dismissing the election
petition. Hence this appeal.
H
788 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
In a democratic polity 'election' is the mechanism.i,.-
devised to mirror the true wishes and the will of the people
in the matter of choosing their political managers and their
representatives who are supposed to echo their views and
represent their interest in the legislature. The results of
the Election are subject to judicial scrutiny and control only
B with an eye on two ends. First, to ascertain that the 'true'
will of the people is reflected in the results and second, to
secure that only the persons who are eligible and qualifiedt- •
c
under the Constitution obtain the representation. In order
that the "true will" is ascertained the Courts will step in to
protect and safeguard the purity of Elections, for, if corrupt
practices have influenced the result, or the electorate has
been a victim of fraud or deception or compulsion on any
A
essential matter, the will of the people as recorded in their '
votes / is not the 'free' and 'true' will exercised\--
intelligently by deliberate choice. It is not the will of the
people in the true sense at all. And the Courts would,
D therefore, it stands to reason, be justified in setting aside
the election in accordance with law if the corrupt practices
are established. So also when the essential qualifications for
eligibility demanded by the constitutional requirements are
not fulfilled, the fact that the successful candidate is the
true choice of the people is a consideration which is totally~
E irrelevant notwithstanding the fact that it would be virtually
impossible to re-enact the elections and reascertain the
wishes of the people at the fresh elections the time-scenario
having changed. And also notwithstanding the fact that
elections involve considerable expenditure of public revenue
(not to speak of private funds) and result in loss of public+
F time, and accordingly there would be good reason for not
setting at naught the election which reflects the true will of
the people lightly. In matters of election the will of the+-
people IDlSt prevail and Courts would be understandably \
extremely slow to set at naught the will of the people truly
and freely exercised. If Courts were to do otherwise, the
G Courts would be pitting their will against the will of the ~
people, or countermanding the choice of the people without any
object, aim or purpose. But where corrupt practices are
established the result of the election does not echo the true-+-
voice of the people. The Courts would not then be deterred by
the aforesaid considerations which in the corruption-scenario
H lose relevance. Such would be the approach of the Court in an ..,
AZHl\R HUSSAIN v. RAJ IV GANDHI {THAKKAR, J.] 789
election matter where corrupt practice is established. But A
what should happen when the material facts and particulars of
the alleged corrupt practices are not furnished and the
petition does not disclose a cause of action which the
returned candidate can under law be called upon to answer? The
High Court has given the answer that it must be SIJl1llllarily
dismissed. The appellant has challenged the validity of the B
view taken by the High Court.
Learned counsel for the appellant has urged four
submissions in support of this appeal viz:
A - Since the Act does not provide for dismissal of
an election petition on the ground that material C
particulars necessary to be supplied in the
election petition as enjoined by Section 83 of the
Act are not incorporated in the election petition
inasmuch as Section 86 of the Act which provides
for SIJl1llllary dismissal of the petition does not
advert to Section of the Act there is no power in D
the Court trying election petitions to dismiss the
pet1t1on even in exercise of powers under the Code
of Civil Procedure.
B - Even if the Court has the power to dismiss an
election petition Sll11111arily otherwise than under E
Sect ion 86 of the Representation of People Act, the
power cannot be exercised at the threshold.
C - In regard to seven grounds of challenge
embodied in paragraph 4 of the election petition
viz. I, II (i, ii & iii), XIII, XIV and XV the High F
Court was not justified in dismissing the petition.
D - Even if . the powers under the Code of Civil
Procedure can be exerciseJ by the Cou,rt hearing
election petitions worse comes to worse, an
election petition may be rejected· under Order 7, G
Rule 11 of the Code of Civil Procedure, but in no
case can it be dismissed.
GROUND A:
H
790 SUPREME COURT REPORTS [1986) 2 S.C.R,
A
In order to understand the plea, a glance at Sections 83 ~
and 86(1) in so far as material is called for :-
"83. Contents of petition:- (1) an election
petition -
B a) shall contain a concise statement of the
material facts on which the petitioner relies :
b) shall set forth full particulars of any corrupt
+·
practice that the petitioner alleges, including as
full a statement as possible of the names of the
c parties alleged to have conlllitted such corrupt
practice and the date and place of the commission ,,J
of each of such practice; and 1"
~
c) shall be signed by the petitioner and verified
in the manner laid down in the Code of Civil
D Procedure, 1908 (5 of 1908) for the verification of
pleadings:
(Provided that where the petitioner alleges any
corrupt practice, the petition shall also be
accompanied by an affidavit in the prescribed form~
in support of the allegation of such corrupt
practice and the particulars thereof)
(2) Any schedule or annexure to the petition shall
also be signed by the petitioner and verified in
the same manner as the petition."
"86 - Trial of election petitions -
(1) The High Court shall dismiss an election
petition which does not comply with the provisions
of section 82 or section 117.
G
EKJ>lanation - An order of the High Court dismissing
an election petition under this sub-section shall
be deemed to be an order made under clause (a) oft
section 98."
H
AZHAR HUSSAIN v. RAJIV GANDHI [THAKKAR, J.] 791
A
The argument is that where the legislature wanted to
provide for sunmary dismissal of the election petition, the
legislature has spoken on the matter. The intention was to
provide for sunnnary dismissal only in case of failure to
comply with the requirement of Sections 81, 82 and 117 (l)
and not Sec. ·83. B
{i)
-'--------------------------------------
81, Presentation of petitions - (1) An election
petition calling in question any election may be
presented on one or more of the grounds specified
in (sub-section (1)) of Section 100 and Section 101
to the High Court. by any candidate at such election
br any elector within forty-five days from, but not c
earlier than the date of election of the returned
candidate or if there ate more than returned
candidate at the election and the dates cif their
election are different, the later of those two
dates.
Explanation : In this sub-section 'elector' means a O
person who was entitled to vote at the election to
which the election petition relates, whether he has
voted at such an election or not.
(3) Every election petition shall be accompanied by
as many copies thereof as there are respondents E
mentioned in the petition and every such copy shall
be attested by the petitioner under his own
signature to be a true copy of the petition.
82. Parties of the petition - A petitioner shall
1 join as respondents to his petition - F
(a) where the petitioner, in addition to claiming
declaration that the election of all. or any of the
returned candidate is void, claims a further
declaration that he himself or any other candidate
has been duly elected, all the contesting G
candidates other than the petitioner, and where no
such further declaration is claimed, all the
returned candidates; and
(b) any other candidate against whom allegations of
any corrupt practice are made in the petition. H
792 SUPREME COURT REPORTS (19861 2 s.c.R.
A
The argument is that inasmuch as Section 83(1) is not
adverted to in Section 86 in the context of the provisions,~
non-compliance with which entails dismissal of the election
petition, it follows that non-compliance with the requirements
of Section 83(1 ), even though mandatory, do not have lethal
consequence of dismissal. Now it is not disputed that the
B Code of Civil Procedure (CPC) applies to the trial of an
election petition by virtue of section 87 of the Act (2).
Si~~__'.'.~~--applic~ble: the Court trying the election+.-.
117. Security for costs - (1) At the time of
presenting an election petition, the petitioner
C shall deposit in the High Court in accordance with
the Rules of the High Court a sum of two thousand Jj
rupees as security for the costs of the petition. I"'
(2) During the course of the trial of an election r-
petition, the High Court may, at any time, call
D upon the petitioner to give such further security
for costs as it may direct.
(2) 87. Procedure before the High Court - (1) Subject
to the provisions of this Act and of any rules made
thereunder, every election petition shall be triep~
E by the High Court, as nearly as may be, in
accordance with the procedure applicable under the
Code of Civil Procedure, 1908 (5 of 1908) to the
trial of the suits ;
Provided that the High Court shall have the t
F discretion to refuse, for reasons to be recorded in
writing, to examine any witness or witnesses if it
is of the opinion that the evidence of such witness··~·
or witnesses is not material for the decision 6£
the petition or that the party tendering such
witness or witnesses is doing so on frivolous
G grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872
(1 of 1872), shall, subject to the provisions of 1
this Act, be deemed to apply in all respects to the-i--
trial of an election petition.
H
AZHAR HUS SA.IN v. RA.JIV GA.NllHI [THAKKAR, J. ] 793
A.
petition can act in exercise of the powers of the Code
including Order 6 Rule 16 and Order 7 Rule 11.(a) which read
thus :-
Order 6, Rule 16 : "Striking out pleadings - The Court may at
any stage of the proceedings order to be struck out B
or amend any matter in any pleading -
a) which may be unnecessary, scandalous, frivolous
or vexatious, or
b) which may tend to prejudice, embarrass or delay
the fair trial of the suit; or c
c) which is otherwise an abuse of the process of
the Court."
Order 7, Rule 11 : "Rejection of Plalnt - The plalnt shall be
rejected in the following cases ·- D
a) where it does not disclose a cause of action
xxxxx xxxxx XKXXX.
11
The fact that Section 82 does not find a place in Section E
86 of the A.ct does not mean that powers under the CPC cannot
be exercised.
There is thus no substance in this polnt which is already
concluded against the appellant in Hardwari Lal v. Kanwal
Singh, [1972] 2 S.C.R. 742 wherein this Court has in terms F
negatived this very plea in the context of the situation that
material facts and particulars relating to the corrupt
practice alleged by the election petitioner were not
incorporated in the election petition as will be evident from
the following passage extracted from the judgment of A..N. Ray,
J, who spoke for the three-judge Bench : G
"The allegations in paragraph 16 of the election
petition do not amount to any statement or material
H
794 SUPREME COURT REPORTS 11986] 2 s.c.R.
A
fact of corrupt practice, It is not stated as to
which kind or form of assistance was obtained or¥
procured or attempted to obtain or procure, It is
not stated from whom the particular type of
assistance was obtained or procured or attempted to
obtain or procure. It is not stated in what manner
B the assistance was for the furtherance of the
prospects of the election. The gravamen of the
char~e of corrupt practic'.' with~n. the meaning. of+- •
Section 123(7) of the Act 1s obta1n1ng or procuring ~
-
or abetting or attempting to obtain or procure any
assistance other than the giving of vote. In the
c absence of any sug,;estion as to what that
assistance was the election petition is lacking in
the most vital and essential material fact to (
Al
furnish a cause of action.
Counsel on behalf of the respondent submitted that
D an election petition could not be dismissed by
reason of want of material facts because Section 86
of the Act conferred power on the High Court to
dismiss the election petition which did not comply
with the provisions of Section 81, or Section 82
or Section 117 of the Act. It was emphasized that
E Section 83 did not find place in section 86. UnderA
section 87 of the Act every election petition shall
be tried by the High Court as nearly as may be in
accordance with the procedure applicable under the c
Code of Civil Procedure 1908 to the trial of the
1
suits. A suit which does not furnish cause of-t-
F action can be dismissed."
In view of this pronouncement there is no escape from the
conclusion that an election pet1t1on can be sunmarily
dismissed if it does not furnish cause of action in exercise
of the powers under the Code of Civil Procedure. So also it
G emerges from the aforesaid decision that appropriate orders in
exercise of powers under the Code of Civil Procedure can be
passed if the mandatory requirements enjoined by Section 83 of
the Act to incorporate the material facts in the election J"
petition are not complied with. This Court in 8-nt R.1
Balkrishoa & Anr. v. George Fernandez & Ors., (1969) 3 s.c.c.
H 239, has expressed itself in no unclear terms that
AZllAR HUSSAIN v. RAJIV GANDHI [THAKKAR, J.] 795
the omission of a single material facf would lead to an A
incomplete cause of action and that an election petition with-
out the material facts relating to a corrupt practice is not
an el1,ction petition at all. So also in Udha11 Singh 11. Mlldha11
Bao Scindia, {1977] 1 S.C.C. 511, the law has been enunciated
that all the primary facts which must be proved by a party to
establish a cause of action or his defence are material facts. B
In the context of a charge of corrupt practice it would mean
that the basic facts which constitute the ingredients of the
particular corrupt practice alleged by the petitioner must be
specified in order to succeed on the charge. Whether in an
election petition a particular fact is material or not and as
such required to be pleaded is dependent on the nature of the
charge levelled and the circunstances of the case. All the C
facts which are essential to clothe the petition with complete
cause of action must be pleaded and failure to plead even a
single material fact would amount to disobediance of the
mandate of Section 83(l)(a), An election petition therefore
can be and must be dismissed if it suffers from any such vice.
Tile first ground of challenge must therefore fail. n
GROOND B :
Learned counsel for the petitioner has next argued that
in any event the po~ers to reject an election petition
summarily under the provisions of the Code of Ci11il E
. Procedure should not be exercised at the threshold. In
substance, the argument is that the court must proceed with
the trial, record the evidence, and only after the trial of
the election petition is concluded that the powers under the
Code of Civil Procedure for dealing appropriately with the
defective petition which does not disclose cause of action F
-+ !
should be exercised. With respect to the learned counsel, it
is an argument which it is difficult to comprehend. nie whole
purpose of confernment of such powers is to ensure that a
litigation which is meaningless and bound to prove aborti11e
should not be permitted to occupy the time of the court and
exercise the mind of the respondent. nie sword of Damocle need G
not be kept hanging over his head unnecessarily without point
or purpose. Even in an ordinary Civil litigation the Court
readily exercises the power to reject a plaint if it does not
disclose any cause of action. or the power to direct the
H
796 SUPREME COURT REPORTS !1986] 2 s.c.R.
A concerned party- to strike out unnecessary, scandalous,
frivolous or vexatious parts of the pleadings. Or such plead-~
ings which are likely to cause embarrassment or delay the fair ··""'·
trial of the action or which is otherwise an abuse of the
process of law. An order directing a party to strike out a
part of the pleading would result in the termination of the
case arising in the context of the said pleading. 1he Courts
B in exercise of the powers under the Code of Civil Procedure
can also treat any point going to the root of the matter such
as one pertaining to jurisdiction or maintainability as a~ '
preliminary point and can dismiss a suit without proceeding to
record evidence and hear elaborate arguments in the context of
such evidence, if the Court is satisfied that the action would ~·
c terminate in view of the merits of the preliminary point of
objection. 1he contention that even if the election petition ·
is liable to be dismissed ultimately it should be so dismissed \.._,-·
only after recording evidence is a thoroughly misconceived and Y,,_
untenable argument. 1he powers in this behalf are meant to be
exercised to serve the purpose for which the same have been
D conferred on the competent Court so that the litigation comes
to an end at the earliest and the concerned litigants are
relieved of the psychological burden of the litigation so as
to be free to follow their ordinary pursuits and discharge
their duties. And so that they can adjust their affairs on the
footing that the litigation will not make demands on their "'\,
E time or resources, will not impede their future work, and they
are free to undertake and fulfil other commitments. Such being
the position in regard to matters pertaining to ordinary Civil ~
litigatidn, there is greater reason for taking the same view
in regard to matters pertaining to elections. So long as the +-
sword of Damocles of the election petition remains hanging an
F elected member of the Legislature would not feel sufficiently
free to devote his whole-hearted attention to matters of Jl~' ·
public importance which clamour for his attention in his 1""
capacity as an elected representative of the concerned consti-
tuency. 1he time and attention demanded by his elected office
will have to be diverted to matters pertaining to the contest
G of the election petition. Instead of being engaged in a
campaign to relieve the distress of the people in general and
of the residents of his constituency who voted him into ~
office, and instead of resolving their problems, he would be ·
engaged in a campaign to establish that he has in fact been
duly elected. Instead of discharging his functions as tr'
H
AZHAR HUSSAIN v. RAJIV GANDHI [THAKKAR, J,] 797
A
.... elected representative of the people, he will be engaged in a
struggle to establish that he is indeed such a representative,
notwithstanding the fact that he has in fact won the verdict
' and the confidence of the electorate at the polls. He will
have not only to wind the vote of the people but also to win
the vote of the Court in a long drawn out litigation before he B
can whole-heartedly engaged himself in discharging the trust
reposed in him by the electorate. The pendency of the election
petition would ,also act as a hindrance if he be entrusted with
""'' some public office in his elected capacity. He may even have
occasions to deal with the representatives of foreign powers
who may wonder whether he will eventually succeed and hesitate
to deal with him. The fact that an election petition calling c
into question his election is pending may, in a given case,
I
act as a psychological fetter and may not permit him to act
with full freedom. Even if he is made of stern metal, the
!- constraint introduced by the pendency of an election petition
may have some iinpact on his sub-conscious mind without his
ever being or becoming aware of it. Under the circumstances, D
there is greater reason why in a dem:>cratic set-up, in regard
to a matter pertaining to an elected representative of the
people which is likely to inhibit him in the discharge of his
duties towards the Nation, the controversy is set at rest at
the earliest, if the facts of the case and the law so warrant.
Since the Court has the power to act at the threshold the E
power llllSt. be exercised at the threshold itself in case the
Court is satisfied that it is a fit case for the exercise of
such power and that exercise of such powers is warranted under
the relevant provisions of law. To wind up the dialogue, to
contend that the powers to dismiss or reject an election
-+ petition or pass appropriate orders should not be exercised F
except at the stage of final judgment after recording the
evidence even if the facts of the case warrant exercise of
such powers, at the threshold, is to contend that the
legislature conferred these powers without point or purpose,
and we llllSt close our mental eye to the presence of the powers
which should be treated as non-existent. The Court cannot G
accede to such a proposition. The submission urged by the
learned counsel for the petitioner in this behalf llllst
• therefore be firmly repelled. ·
( )<.GROUND C :
H
I
The learned counsel for the election pb.itioner has very
798 SUPREME COURT REPORTS [1986] 2 s.c.R.
A fairly contended that out of the 17 grounds embedded in the,
election petition, grounds other than the seven mentioned by
him cannot be pressed into service and that he would restrict
his submissions to these seven grounds. It is therefore un- j
necessary to advert to grounds other than the seven grounds
which have been urged in support of this petition. We Will
accordingly proceed to consider the plea urged to the effect
B that in regard to the aforesaid alleged corrupt practices, the
High Court was not justified in dismissing the election .,,
petition.
Before we deal With these grounds seriatim, we consider
it appropriate to restate the settled position of law as i.t
c emerges from the numerous decisions of this Court which have
been cited before us in regard . to the question as to what
exactly is the content of the expression 'material facts an.d 1
particulars', which the election petitioner shall incorporate
in his petition by virtue of Section 83(1) of the Act.
D ( l) What are mterial facts and particulate ?
Material facts are facts which if established would ~
give the petitioner the relief asked for. The test
required to be answered is whether the Court could •
have given a direct verdict in favour of the
E election petitioner in case the returned candidate
had not appeared to oppose the election petition on
the basis of the facts pleaded in the petition.
Manubbai Nandlal Amrsey v. Popatlal Kanf.lal .Joshi
& Ors., [1969] 3 s.c.R. 211.
F (2) In regard to the alleged corrupt practice
pertaining to the assistance obtained from a
Government servant, the following facts arE!
essential to clothe the petition With a cause of
action which Will call for an answer from the
returned candidate and D11st therefore be pleaded.
G Hardnri Lal v. Itannl Singh, [1972] 2 s.c.R. 742:
a) mode of assistance;
b)measure of assistance; and
H
AZHAR HUSSAIN v, RAJIV GANDHI [THAKKAR, J,] 799
A
c) all vartous forms of facts pertaining to the
assistance.
(3) In the context of an allegation as regards
procuring, obtaining, abetting or attempting to
obtain or procure the assistance of Government B
servants in election it is absolutely ess.ential to
plead the following :
a) kind or form of assistance obtained or procured;
b) in what manner the assistance was obtained or
procured or atte~ted to be obtained or procured by C
the election-candidate for promoting the prospects
of his election llanlvarl Lal v. lamral Singh.
(supra)
(4) The returned candidate ID.1st be told as to what
assistance he was supposed to have sought, the type D
of assistance, the manner of assistance, the time
of assistance, the persons from whom the actual and
specific assistance was procured Bardlrarl Lal v.
Kanwal Singh. (supra)
(5) There m.1st also be a statement in the election E
petition describing the manner in which the
prospects of the election was furthered and the way
in which the assistance was rendered. llanlvarl Lal
v. lanval Singh (supra).
(6) The election petitioner nust state with F
exactness the time of assistance, the manner of
assistance, the persons from whom assistance was
obtained or procured, the time and date of the
same, all these will have to be set out in the
particulars llanlvarl Lal v. lamral Singh (supra).
And having restated the settled position in regard to the
content of the expression 'material facts 1 , the time is now
ripe to proceed to deal with th•> gr9unds on "1hlch the election
of the returned candlcl:tte is a'l'laltecl, seriat:im.
GROUND I : H
800 SUPREME COURT REPORTS [19861 2 s.c.R.
A
Alleged corrupt practice as incorporated in Ground l>-1
reads thus · -
"The election of the respondent is liable to be set
declared void because the respondent was guilty of
the following corrupt practice as defined under
B Section 123(7) of the Representation of People Act,
1951, read with Section !OO(l)(b) and lOO(D)(ii) of
the said Act, the said corrupt practice was~ ~
committed with the consent of the respondent
returned candidate and of other workers of his with
his consent, In any event, it was committed by the ~
c respondent's agents in the interests of the
returned candidate and the said corrupt practice
has materially affected the result of the election
in so far as it concerns the returned candidate. -r~
One M.H. Beg who at one time was the Chief Justice
of the Supreme Court of India and is a close
D friend of the Nehru family and is personally known
to and friendly with the respondent, appeared on
the government controlled news media and made a
speech praising the respondent and comparing his
entry into politics as the birth of new Arjuna, the l
insinuation being that the opposition were the ,.,.._
kauravas. His appearance on the television was
relayed day after day on the government controlled
media. Television sets had been installed in
practically every election office of the respondent
in Amethi constituency and throughout the election t
campaign thousands and thousands of voters were
exposed to the television appearance and speech of
the said Mr. Beg. Mr. Beg is a gazetted officer, ~
being the Chairman of the Minorities Commission.
His services were procured and obtained by the ,.
respondent, his agents and other persons with the '._
consent of the respondent with a view to a.qgist the
G furtherance of the prospects of the respondent's
election. Mr. Beg was seen and heard on the
television as later as 21st December, 1984.
Propaganda about Mr. Beg's was done particularly ..J...-
amongst the members of the Muslim col!lllllnity. Apart
from being gross misuse of the office of Chairman
If of the Minorities Commission, the same constitutes
AZllAR HUSSAIN v, RAJIV GANDHI [THAKKAR, J,] 801
A
a gross corrupt practice under the electio:y law."
lib.y the High Court held that mterial facts and particulars
are absent and did not disclose a cause of action ?
The High Court observed :- B
"The contention of the learned counsel for the
respondent is that there is no pleading that Mr.
Beg was "a person in the service of the governuent"
as, according to the learned counsel, the Chairman
of the Minorities Colllllission is not a person in the
service of the governuent. Learned counsel for the c
petitioner says that the petitioner had
specifically pleaded that Mr. Beg was a gazetted
officer which implies a pleading that he was in
the service of the governuent. Leanied counsel for
the respondent says that simply because a person is
a gazetted officer, it is not necessary that he D
nnst also be a governm=nt servant because the
appointm=nt of so ""1ny persons is gazetted and yet
som= of them may not be governuent servants. Be
that as it may, the fact rem.'lins that the
petitioner had not stated in the pleading that Mr.
Beg was a person in the service of the governuent E
as specifically required by Section 123(7) of the
Act. This requirem=nt is a requirem=nt of the
• statute and is, therefore, a material fact within
the m=aning of Sec. 83(l)(a) of the Act. Similarly,
the stateuent that the services of Mr. Beg were
procured and obtained "by the respondent, his F
agents and other persons with the consent of the
respondent" is clearly vague as discussed above. It
was incumbent upon the petitioner to specify which
of the three alternatives he ueant to plead; in
particular it was necessary for him to indicate the
naues of the respondent's agents and other persons G
to enable the respondent to know that what was the
case which he was expected to ueet. Learned counsel
for the respondent further contended that the peti-
tioner has not set out the exact words used by Mr.
Beg in his speech; the expression "a speech prais-
H
802 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
ing the respondent" and comparing his "entry into
politics as the birth of new Arjuna" is not what Y
Mr. Beg might have said. In the case of LK. Mani
v. P.J. Antony, [1979] 2 S.C. Cases 221, the speech
made by a Police Officer exhorting the electors in
an election meeting to support a candidate was
B questioned. It was held that a mere statement of
the making of the speech or exhortation was not
enough, and that transcript of the alleged speech ,
or contemporaneous record of the points or at least ...
-
substance of the speech should have been made
available. In these circumstances the proposed
c pleading in this paragraph does not set out the
material facts and, therefore, constitutes an in-
complete cause of action under section 123(7) of
the Act."
Whether the High Court was rlght in taking the aforesaid view:
D
The averments contained in paragraph 4 pertaining to
Ground No.1 do not satisfy the test prescribed in Mannbbai
Amraey v. Popatlal Manilal Joshi & Ors., (supra) and llardwarl
Lal v. Kalllfal Singh, (supra). The imst important test which
remained unsatisfied is as regards the omission to satisfy in.(_
E what manner the assistance was obtained and procured by the
election-candidate for proooting the prospects of his
F
election. All that has been stated is:
"His services were procured and obtained by the
respondent, his agents and other persons with the
consent of the respondent with a view to assist the
+
-
furtherance of the prospects of the respondent's
election, , " ~
It is not mentioned as to who procured or obtained the / -
services of Shri Beg, in what manner he ~btained the services -....
G and what were the facts which went to show that it was with
the consent of the respondent. Unless these "essential facts
which would clothe the petition with a cause of action and •
which will call for an answer from the returned candidate are~--
pleaded as per the law laid down in Mannbbai l!landl al Amrsey
v. Popatlal Manilal Joshi & Ora., (supra) it cannot be said
H that the petition discloses a cause of action in regard to
AZHAR HUSSAIN v. R.\JIV GANDHI [THAKKAR, J,] 803
A
this charge. In the absence of these material facts and parti-
culars the Court could not have rendered a verdict in favour
of the election petitioner in case the returned candidate had
not appeared to oppose the election petition. It is not suffi-
cient to show that a Government servant had appeared on the
public media to praise one of the candidates. It must also be B
shown that the assistance of the Government servant was
obtained either by the respondent or his agent or by any other
person with the consent of the election candidate or his
election agent. The averments made in the petition do not show
(i) who had obtained or procured the assistance from Shri Beg;
(ii) how he had obtained or procured the assistance of Shri
Beg; and (iii) how it was said that it was with the consent of c
the respondent or his election agent. Nor is it shown which,
if any, facts went to show that it was in furtherance of the
prospects of the respondent's election. ln the absence of
material facts and particulars in regard to these aspects, the
petition would not disclose the cause of action. The High
Court, was therefore, perfectly justified in reaching this D
conclusion. The petition also does not disclose the exact
words used in the speech; or the time and date of making such
a speech. Now, unless the relevant or offending passage from
the speech is quoted, it cannot be said what exactly Shri Beg
). had said, and in what context, and whether it was calculated
to promote the election prospects of the respondent. Be that E
- +
as it may, inastlBlch as these material facts and particulars to
show that the services of Shri Beg were procured by someone
with the consent of the respondent or his election agent are
not there, the averments pertaining to the charge do not
disclose a cause of action. Unless the nexus between the
appearance of Shri Beg on the media and the prior consent of F
the respondent or his election agent in regard to what he was
going to say and the purposes for which he was going to say is
set out in the material particulars it cannot be said that it
disclosed a cause of action and the test laid down in Kanubiu.i
Nandlal's case, as also Bardwari Ial's case is satisfied. The
High Court was therefore justified in taking the view that it G
has taken. We may, in passing, mention a point made by learn-
ed counsel for the respondent. It was submitted that the aver-
-+ ment tlBlst also mention whether the interview was a live one
telecast after the date of filing of the nomination. If it was
one recorded prior to the said date it may not be of any
H
804 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
consequence. This argument also requires consideration but we
do not propose to rest our conclusion on this aspect as it is>--'
not necessary to do so.
GROUND II(i)
B
It has been set out in para 4 of the petition in the
following terms :
"Throughout the petitioner's constituency in
~ .
Amethi, worker employed by the respondent and/or
c his agents painted available space with two ,
slogans. The first one was "BETI HAI SARDAR Kl. ~
DESHI KE GADDAR Kl". Literally translated it
implied one of the candidates i.e. Mrs. Maneka ,
Gandhi is the daughter of a Sikh and that Sikh9f<...
including her father are traitors. The second
D slogan was "MANEKA TERA YE ABHIMAN. BANANE NA DENGE
KHALISTAN". Literally translated it means Maneka
this is your illusion. We will not allow Khalistan
to be set up. The clear insinuation was that the
said candidate i.e. Mrs. Maneka Gandhi had a vision
of Khalistan being set up, that her election would
E mean the creation of Khalistan and that she was a.J..
supporter of the Khalistan demand. These slogans
were also painted on sollE of the vehicles used by
F
the respondent's workers during the course of
campaign. On every occasion those slogans were
uttered and broadcast from vehicles and from
microphones used at public meetings and from th<!t
-
Congress (I) party office in the constituency of
the respondent. The use of such slogans was the pet
1
the11E of almost every speech delivered in the~
constituency during the election campaign. The use ,-
of these objectionable slogans and posters harmful:
G to newspapers and the respondent !lllst have known to ~
them. But for the fact that t'hey had been used with
his consent, he would have taken some steps to
repudiate them or have their use discontinued.
Photographs of walls,, with the said slogan~.
alongwith certificates will be filed as Exhibit-A."
H
Why the High Court held that mterial facts and particulars
are absent and did not disclose a cause of action?
AZHAR HUSSAIN v. RAJIV GANDHI [THAKKAR, J,] 805
A
In this context the High Court observed :-
", •••••• The contention of learned couns·e1 for the
respondent is that this pleading suffers from lack
of material facts because the names of the workers,
employed by the respondent, or his agents, who B
painted the slogans or uttered them in speeches or
broadcast from the vehicles, have not been
indicated. It is pointed that the allegation
regarding the painting of slogans is vague because
it is stated to have been done by "workers .........
and/or his agents" signifying that the petitloner
himself did not know whether painting work was done c
by workers employed by the respondent or by his
agents or by both. I have already pointed out that
this kind of statement is vague and embarrassing
and, therefore, is contrary to the concept of
material facts. In the case of Nihal Singh v. Rao
Bireodra Singh &Aur., [1970] 3 Supreme Court Cases
D
239 it was held that the allegation that at meet-
ings in different villages, speeches were given on
5th and 12th May 1968 was vague in the absence of a
specification of date and place of each meeting and
evidence could not be permitted to be led in the
matter. The allegation of consent of the E
respondent to the paintings of the slogans or to
their utterances in the speeches of his workers is
only inferential. There is a distinction between
consent and connivance. The pleading is in the
+ nature of a pleading of connivance and not of
consent which is not enough, vide the case of F
Diaran Lal Sahu v. Giani Zall Singh (A. I. R. 1984
S.C. 309). In the case of Snreodra Singh v. Bardial
Singh (A.I.R. 1985 S.C. 89), i t has been indicated
in para 37 that consent is the life-line to link up
the candidate with the action of the other person
which may amount to corrupt practice unless it is
G
specifically pleaded and clearly proved and proved
beyond reasonable doubt, the candidate cannot be
charged for the action of others."
Whether the High Court was right in taking the aforesaid view:
H
806 SUPREME COURT REPORTS [19861 2 s.c.R.
A
There is a glaring omission to mention the names of the
workers said to have been employed by the respondent or his 'rt
agents who have allegedly painted the slogans. So also no
material particulars are given as regards the vehicles on
which the said slogans have been said to have been painted.
There are no material particulars or facts. We are of the view
B
that inas11llch as the material facts and particulars in r~gard
to this alleged practice were not mentioned and the High Court
was justified in taking the view that it had taken. The ""
averments contained in regard to this charge also do not i
satisfy the test laid down by the various decisions of this
Court adverted hereinabove. A Division Bench of this Court in
c Nihal Singh v. Rao Birendra Singh, [1970] 3 S.C.C. 23S,
speaking through Bhargava, J. has observed :- :(_
" ••• The pleading was so vague that it 1eft a wide
scope to the appellant to adduce evidence in y'··
respect of a meeting at any place on any date that
D
he found convenient or for which he could procure
witnesses. The pleding, in fact, was so vague and
was wanting in essential particulars that no
evidence should have been permitted by the High
Court on this point •••••• "
E
(see para 8) -(,
The principle laid down is that the pleading in regard
to matters where there is scope for ascribing an alleged ..
corrupt practice to a returned candidate in the context of a
meeting of which dates and particulars are not given would+
F
tantamount to failure to incorporate the essential particulars
and that inas11llch as there was a possibility that witnesses
could be procured in the context of a meeting at a place or - .
date convenient for adducing evidence, the High Court should
not even have permitted evidence on that point. In other i
G
words, no amount of evidence could cure the basic defect in - ..
the pleading and the pleading as it stood uust be construed as
one disclosing no cause of action. In the light of the
aforesaid principle laid down by the Supreme Court which
has held the field for more than 15 years, the High Court was
1
perfectly justified in reaching the conclusion called into ~·
question by the appellant.
H
AZHAR HUSSAIN v. RAJIV GANDHI [THAKKAR, J,] 807
Ground II(ii) : A
Alleged corrupt practice as incorporated in Ground II(ii)
reads as under :-
"The respondent himself toured the constituency on
the 12th and 13th December, 1984. On the night of B
the 11th as he was entering the constituency he was
stopped by the petitioner's workers at Inhauna
Kashah. The walls there bore these slogans. The
petitioner alongwith other workers stopped the
respondent's vehicle and drew his attention to the
so vulgar slogans. The respondent saw nothing
objectionable in these slogans. He was requested to c
give instructions to the authorities that these
should be removed and he contemptuously had the
workers dismissed and dispersed. He declared that
their leader (refering to Mrs. Maneka Gandhi)
deserves nothing better. The respondent delivered
D
several speeches during the course of his visit. In
none of these speeches did he repudiate these
slogans. He repeatedly referred to the assassina-
tion of his mother and to the Anandpur Resolution
saying that the opposition had encouraged secces-
sionist and violent elements and that the opposi-
tion conclaves in the past had given rise to the E
emotion that had eventually taken the prime
minister, his mother's life. He insinuated that the
assassins were sikhs and then asked the audience to
make up their minds whether they still wanted
somebody from the same conmmity to succeed in the
F
election."
Why the High Court held that material facts and particulars
are absent and did not disclose a cause of action ?
The Hig~ Court observed
G
"Learned counsel for the respondent correctly
contends that these averments again are vague
because they do not describe the petitioner's
workers who stopped the respondent or furnish
details of the speeches in which the respondent was
H
808 SUPREME COURT REPORTS [1986] 2 S.C.R.
A
expected to repudiate the slogans. He has also
correctly urged that the so-called request if any,
to the respondent for 'instructions to the """
authorities' was misconceived and did not establish
any obligation of the respondent to direct the
authorities under any provision of the election
'
law."
B
Whether the High Court was right in taking the aforesaid view:.. -.
In this case also, no time, date and place of the
speeches delivered by the respondent have been mentioned. No ~
exact extracts from the speeches are quoted. Nor have the
c material facts showing that such statements imputed to the
respondent were indeed made, been stated. No allegation is
made to the effect that it was in order to prejudice the elec-y'-
tion of any candidate. Or in order to further the prospects of
the election of the respondent. The essential ingredients of
D
the alleged corrupt practice have thus not been spelled out.
So far as the meeting is concerned, the principle (1) laid
down in Mihal Singh's case (supra) discussed in the context of
the charge contained in ground (II)(i) is attracted. The view
taken by the High Court is therefore unexceptionable.
Ground II(iii) :
The alleged corrupt practice as incorporated in ground
II(iii) reads as under :- .
"In line with the respondent's speeches, his+
F
workers with the knowledge and consent of the
respondent and other agents of the respondent en- ,
trusted with the task of conducting the election -1...
campaign caused a poster of Hindi and Urdu to be •
affixed in all prominant places throughout the :
constituency. The said poster was in fact a page of --
(l)" ..... The pleading was so vague that it left a wide scope
to the appellant to adduce evidence in respect of a meeting at~-
any place on any date that he found convenient or for which he
could procure witnesses. The pleading, in fact, was so vague
:j
and wa& wanting in essential particulars that no evidence
should have been permitted by the High Court on this
point ••••• "
AZHAR HUSSAIN v. RAJIV GANDHI [THAKKAR, J,] 809
A
the Blitz newspaper of 30.6.84 called the Id
Special. The Id that year was on 1st July, 1984.
The heading of the said poster which was underlined
in red alleged conspiracy between the leader of the
petitioner party and Bhindaranwale. Photographs of
Mrs. Maneka Gandhi and Bhindaranwale appeared B
separately on left and right hand corners of the
said advertisement. A literal English translation
of the poster is given below :- A copy of the said
poster will be filed as Exhibit-B. The poster also
. purported to carry a fascimile copy of a letter
dated the 10th September, 1983, purporting to be
addressed by Shri Kalpnath Sonkar, a member of the
Rashtriya Sanjay Manch, to Shri Bhindaranwale. The
c
letter is a forgery and that it was forged was
publicly stated by alleged author of the alleged
letter and a criminal case is pending in the matter
thereof. The letter was fabricated expressly for
the express purpose of showing :- D
(a) that Mrs. Maneka Gandhi was in secret
conspiracy with Bhindaranwale.
(b) that Mrs. Maneka Gandhi illegally supplied arns
to Bhindaranwale and other successionists and E
terrorists.
( c) that Maneka Gandhi was in sympathy with the
creation of Khalistan and the division of the
country and the use of violence to achieve that
end. F
The said allegations are totally false and
fabrication. The respondent knew them to be false.
He did not and could not believe the.m to be true.
That complaints were made to the District
authorities about the obnoxious wall paintings and G
posters to which the attention of the respondent
had been drawn. The said authorities while clearly
1-~ admitting the R.S.M. election agents and worker as
well as to the press correspondents that they were
objectionable took no steps to rem:>ve or obliterate
them. Prominent newspapers and press correspondents H
810 SUPREME COURT REPORTS [ 1986] 2 S.C.R.
A
continued to draw attention to those slogans and
posters rut the respondent or his workers took no Y
steps whatsoever to stop their exhibition,
circulation and use. The respondent condoned and
sanctioned the exhibition and circulation of this
poster. He did nothing to stop the use thereof by
B his workers. The wall painting mentioned above and
this poster were paid out of Congress (I) Party's.
These were therefore, his own expenses sanctioned
by himself. Cutting of some of the newspapers_..,
c
reports will be filed as Exhibit C."
Why the High Court held that material facts and particulars
are absent and did not disclose a cause of action?
.
The High Court held
" ••••••• It appears to me that if an averment of
D fact is an essential part of t~e pleading, it Illlst
be considered to be an integral part of the peti -
tion. If such an averment is not actually put in
the election petition, the petition suffers from
the lack of material facts and therefore, the
statement of cause of action would be incomplete.
E If it is stated in the election petition, either in ,.(_
the body of the petition itself or by way of
annexure, but its copy is not furnished to the
respondent, the election petition would be hit by ..
the mischief of Section 81(3) read with Section
86(1) of the Act. In my opinion, the reference to +
F the poster and its proposed translation in the
election petition, which was never incorporated
into it, are material facts under Section 83(l)(a) -i--
of the Act their_ absence cannot now be made good by 1
means of an amendment. The pleading as it stands,
and even if it were permitted to be amended would
G suffer from lack of cause of action on this
material fact, and, therefore, is liable to be
struck out. The newspaper cutting are not used by
the petition as containing fact, but only as '
evidence to that extent amendment is allowed. 1-
H Whether the lligh Court was right in taking the aforesaid view?
AZHAR HUSSAIN v, RAJIV GANDHI (THAKKAR, J,] 811
A
It will be noticed that in the election petition it has
been 11Entioned that a copy of the poster would be subsequently
filed, and the cuttings of so!IE newspaper reports would
also be filed later on. The election petitioner sought an
a11Endment to delete the aver11Ents on both these aspects. The B
High Court rejected the prayer in regard to poster (Ex. B),
but granted the prayer in respect of the cuttings. The High
Court has taken the view that the poster was clai11Ed to be an
integral part of the election petition and since it was not
filed (1Dlch less its copy furnished to the respondent) the
pleading suffered from infirmity and non-compliance with
. Section 83(1) read with Section 86(1) of the Act. Non-filing
of the poster is fatal to the -election petition as in the
c
absence thereof the petition suffers from lack of material
facts and therefore the state11Ent of cause of action would be
incomplete. Nothing turns on the facts whether or not the
words "a copy of the said poster would be filed as Exhibit B"
are allowed to be retained in the election petition or are n
deleted as prayed for by the appellant. The fact remains that
no copy of the p~ster was produced. It 1Dlst also be realized
that the election petitioner did not seek to produce the copy
of the poster, oot only wanted a reference to it deleted so
that it cannot be said that the accompaniments were not
produced along with the election petition. The fact remains E
that without the production of the poster, the cause of action
would not be co~lete and it would be fatal to the election
petition inasD11ch as the material facts and particulars would
be missing. So also it could not enable the respondent to 11Eet
the case. Apart from that the most important aspect of the
matter is that in the absence of the na11Es of the respondent's F
workers, or material facts spelling out the knowledge and
consent of the respondent or his election agent, the cause of
action would be incomplete. So 1Dlch so that the principle
enunciated by this Court in Mihal Singh's case (supra) would
be attracted. And the Court would not even have permitted the
election petitioner to lead evidence on this point. The High G
Court was therefore fully justified in taking the view that it
has taken.
Ground nu
Allesed corrupt practice 88 incorporated in ground llo. nu H
reads 88 fol~ :-
812 SUPREME COURT REPORTS [1986) 2 S.C.R.
A
"That, in the later half of June, 1983, a family
friend of the respondent and a very close and inti- ,._,
mate friend of the respondent's 100ther, Shri
Mohaonood Yunus, wrote a book called "Son of India".
A colllllittee called the Son of India colllllittee
B published the book. It was printed by Virendra
Printers of Karol Bagh, New Delhi. The Son of India
coonnittee consisted a100ng others of Minister
Narasimha Rao, M.P., the Executive President of the
Congress (I) Shri Kamlapati Tripathi, Ministers -<\
Sitaram Kesari and Narain Dutt Tiwari. The book
c starts with a brief coonoont by the editor entitled
"Pathakon Se Do, Battein" (short dialogue with the
readers) and is followed by a 22 page story of the
two brothers, namely the respondent and his late
brother Shri Sanjay Gandhi. This book was written,
printed and published with the knowledge, consent
D and assistance of the respondent. The respondent by
himself by the party, by his workers and through
other persons acting with the consent of the
respondent and/or his election agent, distributed
the said book in the Amethi constituency during the
entire course of the election campaign, The said
E book contains statements which are false and which l
to the knowledge of the respondent were believed to ~
be false. The said statements are in relation to
the personal character and conduct of Mrs. Maneka
Gandhi. The said statements were reasonably cal-
culated to prejudice the prospects of the peti-
.
F tioner's election. All statements UBde in relation +
to the character or conduct of the petitioner are
totally false. In particular, the petitioner says
that the following statements made therein answer
the description aforesaid and constitute a gross,
corrupt practice within the meaning of Section
G 123(4) of the Representation of the People Act,
1951. The said corrupt practice has been colllllitted
by the respondent, the returned candidate. It has
also been colllllitted by his election agents and by
other persons with the consent of the respondent
and/or his election agents. A copy of the booklet
H entitled Son of India will be filed as Exhibit 'P'.
It has also been committed in the interest of the
AZHAR HUSSAIN v. RAJIV GANDHI [THAKKAR, J,] 813
·respondent returned candidate and by his agents. A
The said corrupt practice renders the election of
the respondent liable to be set aside and declared
void, as a result of Section lOO(I)(b) of the said
Act. Reproduced herebelow are some of the false
statements contained in the said book "Son of
India" relating to the personal character and B
conduct of Mrs. Maneka Gandhi one of the candidates
in the said election.
(a) That Mrs. Maneka Gandhi utilised her marriage
to the late Sanjay Gandhi as a means of enriching
herself.
c
(b) She is spending so llllch money on herself and
her various activities. Where does all this money
come from? The insinuation is that the petitioner
is possessed of wealth corruptly made which is now
being spent.
D
(c) That she misused her marriage to increase her
influence and amass wealth.
(d) That her marriage life was one of the constant
friction with her husband.
E
(e) That due to her foolish actions, her husband
became more and more unhappy. It is as a result of
domestic unhappiness created by her that Sanjay
Gandhi to drown his sorrow took to flying. His
flying in the plane which ultimately crashed and in
F
which he died as a direct result of her misconduct.
(f) That she was totally indifferent to her
husband's death.
(g) That she left her mother-in-law's home because
she was denied a Parliamentary Seat. G
(h) That she had no love for her husband and she
should be ashamed of herself.
Why the High Court held that 1111terlal facts and particulars
are absent and had not disclosed a cause of action? H
814 SUPREME COURT REPORTS [1986] 2 S.C,R,
A
The High Court observed as under :-
"In this connection learned counsel for the
respondent has also referred to the averl!Ent that
the said statement "were reasonably calculated to
prejudice the prospects of the petitioner's
B election". Similarly, he refers to statements (b)
contained in the paragraph wherein an observation
is made that "the insinuation is that the petition- ~
er is possessed of wealth corruptly made ...... ,"
The contention is that these averl!Ents would apply
to Smt. Maneka Gandhi personally as if she was the
c petitioner and not to Ch. Azhar Hussain the present
petitioner. Ch. Azhar Hussain was not contesting
the election, he was only a voter. The statement
"that the petitioner's election were calculated to
be prejudiced" or that "the petitioner was possess-
ed of wealth corruptly made" was wholly inappli -
D cable to the petitioner Ch. Azhar Hussain and could
certainly apply to Smt. Maneka Gandhi. It is,
therefore, urged that this pleading is not made by
the petitioner himself and therefore, cannot be
looked into. Realising the error the petitioner has
applied for a11End11Ent to the petition to 11Ention
E that the statements were calculated to prejudice
the leader of the petitioner's political party and
that regarding possession of wealth, it related to
the leader of the petitioner's political party,
...
namely, Smt. Maneka Gandhi. It appears to l!E that,
as pointed out by the learned counsel for the
F respondent, the proposed a11End11Ent changes the
entire nature of the pleading in this paragraph and
is not merely a clerical mistake. It is an indica-
tion of the fact that the pleading has been made +-
without an application of mind and it seems to me
that it is hit by one of the principles set forth
G in Section 86(5) of the Act for which an a11End11Ent
llllSt not be allowed. I am not satisfied that the
proposed amend11Ent could justly be allowed and
therefore, llllSt fail. On a consideration of all the ~
matters, I would hold that the pleading in this
paragraph is not sustainable, suffers from lack of
material facts as a result of non-application of
mind of the petitioner himself and is irrelevant."
AZHAR IIlJSSAIN v. RAJIV GANDHI [THAKKAR, J.] 815
A
Whether the High Court was right in talrfng the aforesaid
view :-
There is no aver112nt to show that the publication was
made with the knowledge or consent of the returned candidate
when the book was published in June, 1983. In fact, in 1983 B
there was no question of having acted in anticipation of the
future elections of 1985 and in anticipation of the respondent
~ contesting the same. In the election petition even the offend-
ing paragraphs have not been quoted. The petitioner has set
out in paragraphs (a) to (h) the inferences drawn by him or
the purport according to him. This apart, the main deficiency
arises in the following manner, The essence of the charge is c
~ that this book containing alleged objectionable material was
lilt' distributed with the consent of the respondent. Even so
.., -1 strangely enough even a bare or bald aver112nt is not made as
to :
i) whom the returned candidate gave consent D
ii) in what manner and how ; and
iii) when and in whose presence the consent was given,
to distribute these· books in the constituency. Nor does it E
contain any material particulers as to in which locality it
was distributed or to whom it was distributed, or on what date
it was distributed. Nor are any facts mentioned which taken at
their face value would slow that there was consent on the part
of the returned candidate. Under the circumstances it is
difficult to comprehend how exception can be taken to the view F
taken by the High Court.
GROUND UV:
Alleged corrupt practice as incorporated in ground Ho.
llV reads t1u1 :- G
"That during the same campaign in the Amethi
constituency, another booklet in Hindi with the
photograph of the respondent on the cover page
under the title "Rajiv Kyon" (Why Rajiv) purporting
H
816 SUPREME COURT REPORTS (1986] 2 s.c.R.
A
to be written by one Jagdish Pyush, was distributed
in lacs by the respondent, his election agent and a ~
large number of other persons with the consent of
the respondent and/or his election agent. On the
third page of the said pamphlet occurs the
following sentences :
B
"Amethi is the place where Rajiv's younger brother
did his principal work. If Maneka was in s~athy ~
with the desires of the late Sanjay Gandhi why
would she not run an orphanage in Amethi. Why would
she not serve the helpless poor and why would she
c not employ her vast assets (Arbon Ki Sampati) (of
hundres of crores) in some constructive work,.... -..411111
The same conspiratorials and mischievous elements 111111111
who had painted the hands of Sanj ay Gandhi and ~.,,_
Maneka yellow and the saim foreign powers,
disruptionists and enemies of the country who got
D Maneka out of her family home, are now wanting to
make a Razia Sultan or Noor Jahan and seeing her in
those roles, These people (obviously including the
petitioner) not merely desired the partition of
Smt. Gandhi's family, not only the partition of
Amethi and Rai Bareilly, but also partition of the ,~
E people and partition of the country. The very
people who want another Pakistan in India, who want
Khalistan are the very persons who are tinkering
with the progress of Amethi and cannot permit the '
widow of Sanjay Gandhi to be in the company of the
country's loafers, because no family of India can +,
F permit its daughters or daughters-in-law and the
widow of its loved one to go about behaving like a
vagabond. She is in acute distress about her late -i-
husband' s property, She is conducting her politics ',
in his name. She is abusing her monther-in-law and
her brother-in-law. Having kicked her family, she
G is now doing her dirty deeds · (Gulchhade Uda Rahai
Hai) in a house which costs Rs. 80,000 annual
rent.,,., Social reformers had not advocated the
pursuit of ambitions by widows and in the same _J-
vein, the pamphlet proceeds to state in other '
context thereafter that the petitioner moved about
H in the company of traitors. She has exploited the
AZHAR HUSSAIN v, RAJIV GANDHI [THAKKAR, J,) 817
A
person of her innocent child for political purpose.
For power and pleasure, Maneka can do anything, The
petitioner says that the entire trend of this
pamphlet and the propaganda conducted on the basis
thereof casts serious aspersions on the personal
character of the candidate of his party. It accuses B
her of being possessed of corrupt wealth, disregard
of her husband's wishes, breaking of family ties
for political ambitions not conforming to the
standard of conduct expected of a widow, keeping
company with questionable characters capable of any
i111110ral action for pleasure of the body and even
exploiting her innocent child for her own advance- C
ment. All these aspersions were extensively
published with the knowledge and consent of the
respondent, as well as, with the knowledge and
consent of his election agent and by other persons
with the consent of the respondent and/or his
election agent. The publisher of this pamphlet is D
an important political worker of the Respondent. He
is a member of his party and campaign extensively
for the respondent and his company, The publi-
cation, printing and circulation thereof and the
propaganda based thereon was in any event, done by
the agents of the respondents and in the interest E
of the election of the respondent. Each of these
statements is false. The respondent and others who
made or repeated the same, believed them to be
false. At any rate, they did not believe them to be
true. These statements are in relation to the
personal character or conduct of the candidate and F
they are in relation to her candidature. These
statements were reasonably calculated to prejudice
the prospects of her election. The election of the
respondent is thus liable to be declared void under
section 100(1 )(b), This was also liable to be set
aside under section lOO(l)(d)(ii), inasllllch as the G
result of the election in so far as it concerned
the returned candidate has been materially affected
by this gross corrupt practice. A copy of the
booklet Raj iv Kyon will be filed as Ex. 'Q',"
lily the 11:1.gh Court held that aterlal facts and partic:ul.ars R
are abeent: and bad not disclOHd a cmme of action!
818 SUPREME COURT REPORTS [19861 2 s.c.R.
A In this connection, the High Court observed :-
"While undoubtedly these allegations relate to the
personal character and conduct of Smt. Maneka
Gandhi, the elements of law required by Section
123(4) of the Act have not been specifically set
out. As already held, it was the duty of the
B petitioner to make his choice of the particular
person with whose consent the statement was made or -\
distributed. According to the petitioner himself it
was not made by the respondent but by one Jagdish
Piyush. The )!etitioner instead of pinpointing the
particular person who distributed the booklet or
c with whose consent it was distributed made a broad ~
and vague statement that was done by the
respondent, his election agent, a lai;ge number of ,
other persons with his consent and/or with the "~
consent of his election agent. The date, time and
place of distribution, the names of the agents or
D
persons who distributed it have not been indicated
and, therefore, the pleading is vague and cannot be
sustained."
Whether the High Court was right in taking the aforesaid view:-.~
E On a scrutiny of the averments made in the election
petition it is evident that it is not pleaded as to who has
distributed the pamphlets, when they were distributed, where
they were distributed and to whom they were distributed, in
whose presence they were distributed etc. etc. pleading is
ominuously silent on these aspects. It has not even been
F pleaded that any particular person with the consent of the
respondent or"his election agent distributed the said pamph-
lets. (in fact it has been stated by the learned counsel for
the respondent that no election agent has been appointed by
the respondent during the entire elections).
G The pleading therefore does not spell out the cause of
action. So also on account of the failure to mention the
material facts, the Courts could not have permitted the
election petitioner to adduce evidence on this point. It would
therefore attract the doctrine laid down in Nihal Singb's case
and the,, would be nothing for the respondent to answer.
H
AZHliR HUSSAIN v. RAJIV GANDHI [THAKKAR, J.] 819
Gi:OUDd No. xv: A
Alle.,.t corrupt practice as incorporated in grow::l No. XV
reads as under :-
"That during the course of the campaign, the
respondent, his election agent and his party B
brought into existence a propaganda committee to
further the prospects of the respondent's election.
This co!llllittee was called the "Amethi Matdata
Parishad". Through the agency of this Committee,
the respondent, his election agent and others with
their consent and knowledge caused another pamphlet
to be printed, published and circulated during the c
entire election campaign under the title "How do
Intelligent people think? who is an obstacle in the
progress of Amethi". The said pamphlet inter alia,
contains the following statements :-
'That Maneka Gandhi is surrounded only by anti- D
social elements. She was also seen in the company
of terrorists. Her whole campaign is based on money
••••• In my view, Maneka seems to have a big hand in
the fire of Punjab. Maneka has no merit of her own.
If she had anything in her, it would have come out
before her marriage to Sanjay .... If she had any E
desire for leader-ship or service of the country,
she would have corporated with her husband.
Poli tics is for her a pursuit of pleasure
("Shaukiya Dhandha"). Therefore, she is conducting
her politics on the strength of people like Haji
Masthan and Virendra Shai •••• A woman who could not F
protect the honour of a vast country like India ••••
Maneka is the destroyer of the country'.
The petitioner says that the entire trend of this
pauphlet .and the propaganda conducted on the basis
thereof casts serious aspersions on the personal G
character of a candidate. Each of these statements
is false to the knowledge of the respondents and
others. The printing, publication and circulation
of the said pamphlet and the propaganda based
thereon was, in any event, done by the agents of
H
820 SUPREME COURT REPORTS [19861 2 s.c.R.
A the respondent and in the interest of the electiott_,
of the Respondent. These statements are in relatio~
to the personal character or conduct of a candidate
and they are in relation to her candidature. These
statements were reasonably calculated to prejudice
the prospects of the petitioner's electon. The
election of the respondent is thus liable to be
B declared void under secton lOO(l)(b), This was also
liable to be set aside under section lOO(l)(d~
(ii), inas111Jch as the result, of the election in
so far as it concerned the returned candidate, has
been materially affected by this gross corrupt
practice.
c
In this pamphlet, the same Jagdish Piyush who is~
referred to in the pamphlet in the precedinf ~
paragraphs, is one of the contributors and in that
contribution, he has referred to his publication
mentioned in the previous paragraphs".
D
Why the High Court held that -terial facts and particulars
are absent and did not disclose a cause of action?
The High Court observed :
E "The petitioner has set out specific statements
from this pamphlet commenting adversely on the
character and conduct of Smt. Maneka Gandhi where,
inter alia, her association with terrorists and
other persons of questionable antecedents was set~
out. It has been stated that these staterents are
F false to the knowledge of the respondent and others
and the pamphlet was distributed by the agents o~
the respondent in the interest of the election of
the respondent and that the result, so far as t,l\e
respondent is concerned, has been materially
affected by the corrupt practice. Here also, the
G petitioner nas made an omnibus. staterent of the
printing, publication and circulation of the
pamphlet by the respondent, his election agent an~
others with their consent and knowledge without
trying to pinpoint the particular person who had
done so. The places, dates where the pamphlets were
H
AZHAR HUSSAIN v. RAJIV GANDHI [THAKKAR, J,] 821
aistributed have also not been indicated. It was A
necessary for the petitioner to do under the law as
set out above. The pleading is therefore, vague,
embarrassing and lack• in material facts and,
therefore, DJJSt fail. The petitioner's prayer for
an amendment to delete the proposal to file a copy
of the pamphlet is allowed as it is evidence and B
not integral part of the petition".
f Whether the High Court was right in taking the aforesaid
view?
In view of the doctrine laid down in Nihal Singh's case
(supra) as early as in 1970, the High Court was perfectly C
justified in taking the view that no cause of action was made
out. For, in the absence of material particulars as to who had
printed, published or circulated the pamphlet, when, where and
how it was circulated and which facts went to indicate the
respondent's consent to such distribution, the pleading would
not disclose a cause of action. There would be nothing for the D
respondent to answer and the matter would fall within the
doctrine laid down in IH.hal Singb's case (supra). The learned
counsel for the appellant is unable to show how the Court has
committed any error in reaching this conclusion.
Thus there is no substance in the contentions urged by E
the learned counsel for the appellant in order to assail the
judgment of the High Court in the context of the seven charges
of alleged corrupt practices which the learned counsel wanted
to call into aid in support of his submission.
Last submission (ground D supra) : F
--t Counsel for the appellant has taken exception to the fact
that the High Court has dismissed the election petition in
exercise of powers under Order 7 Rule 11 of the Code of Civil
Procedure notwithstanding the fact that under the said
provision if the petition does not disclose cause of action it G
can only be rejected (and not dismissed). The contention
urged by the learned counsel would have had some signiffr&"lce
if the impugned order was passed before the expiry of the
period of limitation for instituting the election petition. In
the present case the election petition was filed on the last
H
822 SUPRF.ME COURT REPORTS (19861 2 s.c.R.
A
~::: w::::rdt~: ~~=c~i~~d p;!!~!~no~ ~i! t1:t~eon~::s~~~=~t~ ~
0
Section 81 of the Act. It could not have been presented even
on the next day. Such being the admitted position, it would
make little difference whether the High Court used the
expression 'rejected' or 'dismissed'. It would have had some
significance if the petition was 'rejected' instead of being
B 'dismissed' before the expiry of the limitation inas111.1ch as a
fresh petition which contained material facts and was in-1_
conformity with the requirements of law and which disclosed a
cause of action could have been presented 'within' the period
of limitation. In this backdrop the High Court was perfectly
justified in dismissing the petition. And it makes no
c difference whether the expression e~loyed is 'dismissed' or ._JI
'rejected' for nothing turns on whether the former expression '11
is employed or the latter. There is thus no valid ground to>-- •
interfere with the order passed by the High Court, and the
appeal 111.1st accordingly fail.
D But before the last word is said one DrJre word needs to
be said. The expression 'corrupt practice' e~loyed in the Act
would appear to be rather repulsive and offensive. Can it
perhaps be replaced by a neutral and· unoffensive expression
such as 'disapproved practices'? Since this aspect occurred to,..(
us and th~re is an occasion to do so, we hint at it, and rest
E content at that.
And now the last word. The appeal is dismissed. No costs
throughout.
F
A.P.J. Appeal dismissed. '
--r-
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