S. B. Adityan vs S. Kandaswami And Others on 30 April, 1958

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No.130 of 1958

Decision Date: 30 April 1958

Coram: SARKAR J.

S. B. Adityan filed an election petition against S. Kandaswami and others before the Supreme Court of India, with the judgment rendered on 30 April 1958. The petitioner, identified as S. B. Adityan, was the appellant, while the respondent was S. Kandaswami together with the other respondents. The case was set within the framework of the Representation of the People Act, 1951 (43 of 1951), and specifically invoked sections 82, 90(3) and 123 relating to corrupt practice, bribery and the acceptance of gratification. After the election, the appellant had been declared the winner of a seat in the Madras Legislative Assembly. Respondent No. 1 subsequently filed an election petition seeking a declaration that the appellant’s election was void. The petition alleged that two candidates who had contested the same election received monetary payments from the appellant and his election agent, payments that were intended to induce those candidates to withdraw from the contest; both candidates in fact withdrew. The petition, however, did not make those two candidates parties to the proceeding as required under section 82 of the Act.

The appellant therefore moved before the Election Tribunal for dismissal of the petition under section 90(3) of the Representation of the People Act, 1951, contending that the petition failed to comply with the provisions of section 82 because allegations of a corrupt practice had been made against the two candidates and the petitioner had not joined them as parties as mandated by that section. The Court held that the acceptance of a gratification did not amount to a corrupt practice within the meaning of section 123(1) of the Act. Consequently, it could not be said that any allegation of corrupt practice had been made against the two candidates. In the absence of such an allegation, there was no breach of the requirements of section 82, and therefore the election petition could not be dismissed under section 90(3).

In the appellate stage, the matter was heard as Civil Appeal No. 130 of 1958, an appeal by certificate from the Madras High Court against its judgment and order dated 1 November 1957 in W. P. Nos. 623 and 624 of 1957. Counsel for the appellant included A. V. Viswanatha Sastri, T. R. Venkatarama Iyer, K. R. Sharma and K. R. Choudhri. The Court noted that the petition was liable to be dismissed for the non-joinder of two individuals, Muthu and Meganathan, who were defined as candidates under section 79(b) of the Representation of the People Act, 1951. The allegations were that Meganathan had accepted a gift of Rs 10,000 and, in reliance on that gift, withdrew his candidature, and that Muthu had accepted gratification of Rs 5,000 and likewise retired from the contest. The Court examined the language of section 123(1) and observed that the phrase “by a candidate or his agent or by any other person” should be read together with the words “offer or promise” and not with “gift”. Referring to the Transfer of Property Act, the Court explained that a “gift” is a bilateral act involving both the giving and the acceptance of the gift. Finally, the Court cited Section 99 of the Act, indicating that a receipt of a bribe is recognised as a corrupt practice.

Section 99 of the Representation of the People Act, 1951 makes the recording of a finding of corrupt practice mandatory when the Tribunal determines that such practice was committed with the consent of any candidate. When a candidate accepts a gift for the purpose of persuading him to withdraw his candidature, the candidate thereby consents to the bribery and may be named under the provision. The term “gratification” in section 123 is construed broadly and embraces the withdrawal of candidature by a candidate in order to induce another candidate to stand for election. Providing such gratification is treated as a corrupt practice within the meaning of section 123. Section 82(b) refers to allegations of any corrupt practice and therefore includes any claim that relates to or concerns a corrupt practice. Counsel for the respondent argued that a candidate who accepts a gift from a returned candidate does not commit a corrupt practice within section 123(1) and consequently is not a necessary party to an election petition under section 82(b). The section defining bribery explicitly mentions the making of a gift, an offer or a promise by a candidate, his agent or any other person. However, section 123(1) does not list the acceptance of a gift as a corrupt practice. This omission is evident from the repeal of section 124(3) by the amending Act of 1956, which previously treated receipt of gratification by a candidate as a minor corrupt practice. The earlier classification distinguished major corrupt practices, such as bribery by a candidate or his agent under section 123(1), from minor ones under section 124(3). The 1956 amendment abolished the distinction between major and minor corrupt practices, retaining some minor offences while discarding others, including the provision that made acceptance of a bribe a corrupt practice. By deleting section 124(3), Parliament intended that the mere acceptance of a bribe would no longer be treated as a corrupt practice. Section 99 does not itself define the corrupt practice referred to in section 82(b), and when read together with the definition section, it does not support the appellant’s position. The Court noted a curial practice that the matter was to be listed for decision on 20 May 1958.

The judgment of the Court was delivered by Justice Sarkar in connection with the election dispute arising from the 1957 general elections for the Madras Legislative Assembly seat of Sathankulam. In that election nine persons filed nomination papers, all of which were examined and found to be valid during the scrutiny stage. Among the nine nominees were the appellant, the respondent Kandaswami, and two other candidates identified as M. R. Meganathan and G. E. Muthu. Meganathan, Muthu and three additional candidates withdrew from the contest before polling took place and therefore did not vote. Consequently the contest that proceeded to the polls involved the appellant, the respondent Kandaswami and two further candidates, none of whom are relevant to the present appeal. The appellant emerged victorious at the poll and was declared elected on 6 March 1957. On 15 April 1957 the respondent Kandaswami filed an election petition under the Representation of the People Act, 1951, seeking a declaration that the appellant’s election was void. The appellant was made the first respondent to that petition, while Meganathan and Muthu were not made parties to it. Other candidates were joined as parties, but their identities are immaterial to the issues before this Court. The petition was referred to an Election Tribunal for trial, and the appellant subsequently filed an application before the Tribunal, recorded as Application No. 1 of 1957.

In the 1957 general election for the Madras Legislative Assembly, nine persons originally filed nomination papers for the Sathankulam constituency. After the scrutiny of those papers, six candidates remained eligible, among them the appellant, the respondent identified as Kandaswami, and two other candidates named M. R. Meganathan and G. E. Muthu. The remaining candidates, who are not the subject of this appeal, withdrew from the contest before polling took place. Consequently, the contest that proceeded to the ballot involved the appellant, the respondent Kandaswami, and two additional candidates who are also not relevant to the present appeal. The appellant secured a majority of the votes and, on 6 March 1957, was declared elected. Subsequently, on 15 April 1957, the respondent Kandaswami filed an election petition under the Representation of the People Act, 1951, seeking a declaration that the appellant’s election was void. In that petition, the appellant was named as the first respondent, whereas Meganathan and Muthu were omitted entirely. Some of the other contestants were made parties to the petition, but their identities are unnecessary for the present considerations. The petition was then referred to an Election Tribunal for trial.

The appellant filed an application before the Tribunal, recorded as I.A. No. 1 of 1957, requesting dismissal of the petition pursuant to section 90(3) of the Act, which mandates dismissal of any election petition that fails to comply with the requirements of sections 81, 82, or 117. The appellant argued that the petition did not satisfy section 82, which obliges the petitioner to join as respondents any other candidate against whom allegations of a corrupt practice are made. The appellant contended that the petition contained allegations of corrupt practice against Meganathan and Muthu; therefore, under section 82(b) they should have been served as respondents, and the failure to do so rendered the petition non-compliant, necessitating dismissal under section 90(3). The respondent countered that no such allegations were made against Meganathan or Muthu. The Tribunal accepted the respondent’s position and dismissed the appellant’s application. Undeterred, the appellant then approached the Madras High Court with two separate remedies: a writ of certiorari to set aside the Tribunal’s order and a writ of prohibition to restrain the Tribunal from proceeding with the election petition. By its judgment dated 1 November 1957, the High Court rejected both writs, aligning with the Tribunal’s earlier view. Accordingly, the present appeal arose. It is uncontested that Meganathan and Muthu were candidates, as defined by section 79 of the Act, which includes any person duly nominated as a candidate for any election.

Both Meganathan and Muthu had been duly nominated as candidates. The sole issue put to the Court was whether the election petition contained any allegations of corrupt practice directed against them. The petition set out the alleged acts in the following terms: it stated that the returned candidate had allegedly committed an act of bribery-corrupt practice under section 123(1) of the Act of 1951. The petition alleged that the first respondent and his election agent had paid Sri M. R. Meganathan a sum of ten thousand rupees in order to induce him to withdraw his candidature for the Sattankulam constituency, and that, consequently, Meganathan withdrew from that contest. The petition further alleged that Sri G. E. Muthu, a candidate in the same constituency, had received a gratification of five thousand rupees from the first respondent and his election agent for the purpose of making him retire from the contest, and that Muthu did retire. In short, the petition claimed that the appellant and his election agent had paid Meganathan ten thousand rupees and Muthu five thousand rupees to induce both of them to abandon their contests, and that both candidates had indeed abandoned the election. The allegation therefore focused on the fact that each candidate had accepted money paid to them for the purpose of withdrawing from the election.

The question was whether an allegation that a candidate accepted money in order to withdraw from an election amounted to an allegation of corrupt practice against that candidate. The High Court had held that it was not, reasoning that only the giving of a bribe constituted a corrupt practice and not its acceptance. The Court concurred with that view. Section 123 of the Act enumerates various corrupt practices and defines bribery as a form of such practice. Bribery, according to the statute, includes any gift, offer or promise made by a candidate, his agent, or any other person, of any gratification with the object—directly or indirectly—of inducing a person to stand, not to stand, to withdraw, or to retire from candidacy. The explanation clarifies that “gratification” is not limited to monetary benefits but also includes non-pecuniary benefits, while expressly excluding genuine election expenses properly accounted for under section 78. The statutory language emphasizes the act of making a gift, offer or promise, not the act of receiving it. Consequently, the Court found that the definition of bribery under section 123 addressed the provision of a gratification, not its acceptance, and therefore the alleged acceptance of money by the candidates did not fall within the definition of a corrupt practice.

In this case the Court examined whether the definition of “bribery” in section 123(1) of the Act includes the mere acceptance of a gift that was offered for the purpose described in the provision. The provision characterises bribery as “any gift, offer or promise by a candidate or his agent or by any other person, of any gratification” made with the object, directly or indirectly, of inducing a person to stand or not to stand as a candidate, or to withdraw, etc. The definition therefore speaks of the “gift, offer or promise … by a candidate or his agent or by any other person”. The Court observed that those words clearly refer to the act of making a gift, not to the act of receiving it. The phrase “with the object … of inducing” also points to the intention of the person who makes the gift, because the object is attached to the giver, not to the recipient. Consequently, the Court concluded that the statute does not contemplate acceptance of a gift as a corrupt practice. Counsel for the appellant, Mr. Sastri, argued that the words “by a candidate or his agent or by any other person” should be read only with the terms “offer or promise” and not with the word “gift”. The Court found this construction to be impossible given the language of the section. Even if the words were read only with “offer or promise”, the provision would still speak of a gift “to any person”, which again limits the scope to the act of giving and not to acceptance. The Court further referred to section 124 of the Act, which had been deleted by the amendment of Act XXVII of 1956. Prior to its deletion, subsection (3) of section 124 made the receipt of, or agreement to receive, a gift with the same object as described in section 123 a corrupt practice. Because legislative provisions are not duplicated, the receipt of a gift was clearly excluded from section 123(1) before the amendment. The amendment removed the provision that treated acceptance as a corrupt practice but did not amend section 123(1) to incorporate acceptance. Thus, section 123(1) cannot be interpreted as covering acceptance of a bribe. By omitting subsection (3) of section 124, the legislature evidently intended that acceptance of a bribe no longer be classified as a corrupt practice. The Court held that this clear intention precludes any speculation about why the legislature excluded acceptance. If the omission were accidental, it would be for the legislature to remedy, not for the courts to infer a different meaning. Therefore, the Court concluded that section 123(1) does not include the acceptance of a gift within the definition of bribery.

The Court observed that if the omission of the provision was accidental, it was solely for the legislature to correct it; no reasoning for the omission could be allowed to alter the clear meaning of the language employed in section 123(1). Counsel for the petitioner argued that, according to the Transfer of Property Act, a gift cannot exist without the donee’s acceptance, and therefore any reference to a gift in section 123(1) necessarily contemplated both the giving and the acceptance of the thing gifted. He further submitted that, consequently, the corrupt practice of bribery by a gift mentioned in that section must include the acceptance of the gift. The Court acknowledged that a gift indeed involves both the act of giving and the act of accepting, but stressed that these remain distinct acts and the legislature is free to attach consequences to either one alone. Accordingly, the legislature, in drafting section 123(1), could lawfully designate only the making, that is, the giving of a gift as a corrupt practice, and it chose to do so. The provision therefore made the giving of a gift a corrupt practice while deliberately leaving the receipt of a gift outside the definition of corrupt practice. Although a gift cannot be made without an acceptance, the acceptance itself had not been made a corrupt practice. Counsel also pointed to section 99 of the Act, asserting that it demonstrated that receipt of a bribe was a corrupt practice. He explained that section 98 required the Tribunal, at the conclusion of an election petition trial, to pass one of the orders listed therein, and that section 99 prescribed additional orders in certain circumstances. The essential part of section 99(1) required the Tribunal, when making an order under section 98, also to record a finding where any charge in the petition alleged a corrupt practice committed at the election, specifying (i) whether a corrupt practice had been proved to have been committed by, or with the consent of, any candidate or his agent, and the nature of that practice, and (ii) the names of all persons proven guilty and the nature of the practice. Counsel contended that under this provision the Tribunal must determine whether a corrupt practice was committed with the consent of a candidate. He argued that when a candidate accepts a gift intended to induce his withdrawal from the contest, the candidate consents to the corrupt practice of bribery and therefore should be named under section 99.

He explained that, in order for a candidate to be named, the election petition must first contain a specific charge of a corrupt practice made against that candidate. According to his argument, a candidate who agrees to receive a bribe in exchange for withdrawing his candidature thereby commits a corrupt practice; consequently, an allegation of that corrupt practice may be inserted in the petition with the purpose of naming the candidate under section 99. Once such an allegation appears in the petition, section 82(b) would become applicable and the candidate would have to be made a party to the proceeding. He asserted that similar allegations had been made against the individuals Meganathan and Muthu. The Court regarded this contention as plainly incorrect. It observed that section 99 does not itself define a corrupt practice; the definition is set out in section 123, and any reference in section 99 must relate to a corrupt practice as defined therein. A corrupt practice that is committed with a candidate’s consent does not create a new category of corrupt practice. When section 99 speaks of a corrupt practice having been committed with the consent of a candidate, it merely points to a corrupt practice defined by section 123 that has been carried out, and to a candidate who has consented to its commission. The consent of a candidate to the commission of a corrupt practice by another person, irrespective of the consequences contemplated by the Act, is not itself a corrupt practice. Therefore, stating that a candidate consented to a corrupt practice by accepting a gift intended to induce him to withdraw his candidature does not amount to saying that the candidate himself committed a corrupt practice. Such a statement in an election petition does not constitute an allegation of corrupt practice against the consenting candidate, and consequently section 82(b) does not obligate the petitioner to make him a party to the case. The Court clarified that it was not holding that a candidate who accepts a gift to withdraw his candidature is necessarily consenting to a corrupt practice, and it declined to address that specific question in the present matter. He further argued that the term “gratification” in section 123 was broad enough to encompass a candidate’s withdrawal of his candidature in order to induce another candidate to stand for election. He maintained that providing such gratification would itself constitute a corrupt practice under section 123, and he submitted that such corrupt practices had been alleged in the petition against Meganathan and Muthu, thereby requiring that they be made parties to the petition under section 82(b). The Court disagreed with this view, stating that the withdrawal of a candidature by a candidate to induce another candidate to stand for election does not fall within the meaning of “gratification” as used in section 123. Even assuming, for the sake of argument, that it did, the Court noted that no such allegation was made against Meganathan and Muthu in the petition, and therefore section 82(b) did not compel their inclusion as parties.

In the circumstances, the fact that the condition referred to earlier was present did not benefit the appellant in any way. The petition did not contain any allegation that the candidates named Meganathan and Muthu withdrew their candidatures for the purpose of inducing the appellant to contest the election. Consequently, the petition made no claim that Meganathan or Muthu had committed any corrupt practice by withdrawing their candidatures. Because no such allegation existed, there was no requirement under section 82(b) to join Meganathan and Muthu as parties to the petition. Counsel for the appellant, Mr. Sastri, argued that the language of section 82(b) refers to allegations of “any corrupt practice” and therefore covers any allegation that relates to or concerns a corrupt practice. He contended that the election petition did allege wrongdoing by Meganathan and Muthu, asserting that they had accepted gratifications offered to them in exchange for withdrawing their candidatures and that they had indeed withdrawn. On that basis, he maintained that section 82(b) compelled the adjudicating body to make them parties to the proceedings. The Court, however, interpreted the phrase “allegations of corrupt practice against a candidate” in section 82(b) to mean allegations that a candidate has actually committed a corrupt practice. An allegation can be described as being “against” a person only when it imputes some misconduct to that person. Thus, an allegation of corrupt practice against a candidate necessarily implies that the candidate is guilty of such practice. The Court further found that an allegation that a candidate merely accepted a gratification in order to withdraw his candidature does not, by itself, constitute an allegation relating to a corrupt practice. The Court had earlier clarified that the corrupt practice resides in the act of giving the gratification, not in the acceptance of it. Accordingly, the appeal was found to have no merit, was dismissed, and costs were awarded against the appellant.