Shubnath Deogram vs Ram Narain Prasad and Ors

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

Court: supreme-court

Case Number: Appeal (civil) 300 of 1959

Decision Date: 8 October, 1959

Coram: S.K. Das, P.B. Gajendragadkar, A.K. Sarkar, K. Subbarao, M. Hidayatullah

In this case the Court noted that the matter concerned an appeal filed by Shubnath Deogram against Ram Narain Prasad and others. The appeal was recorded as Appeal (civil) 300 of 1959 before the Supreme Court of India and the judgment was delivered on 8 October 1959. The bench that heard the appeal consisted of S.K. Das, P.B. Gajendragadkar, A.K. Sarkar, K. Subbarao and M. Hidayatullah. The judgment was authored by Justice Sarkar.

In the General Elections of 1957 the appellant was returned to the Bihar Legislative Assembly from the Manoharpur constituency in the district of Singhbhum. He belonged to the Adibasi Ho community. The electors in that constituency were largely members of the Adibasi communities of Hos, Mundas and Oraons, although there were also persons from Madhya Pradesh and other communities that were not Adibasi. The Hos and Oraons each speak their own languages, while the non‑Adibasi population is primarily Hindi‑speaking; some members of the Adibasi communities may also speak Hindi. The appellant had been set up as a candidate by the Jharkhand Party, which supported him in the election. The object of that party is to secure a separate administrative unit for what it terms the Jharkhand area, a region comprising parts of Bihar, Orissa, Bengal and Madhya Pradesh and inhabited largely by Adibasis. The party does not seek a separate State for the Adibasis alone; rather, it intends to include in Jharkhand all people of any community living in that area, and its membership is open both to Adibasis and to non‑Adibasis. The symbol chosen by the party for the election was a cock, a symbol that was recognised by the Election Commission.

Besides the appellant there were five other candidates contesting the election from the Manoharpur constituency. Among them was respondent No 1, Ram Narain Prasad Yadab, a Hindu who does not belong to any Adibasi community. He is the only contesting respondent in this appeal and will be referred to as the respondent. After the results of the election were declared the respondent filed an election petition seeking an order declaring the election of the appellant void on the grounds mentioned in the petition, and he made all the other candidates parties to that petition. The petition was dismissed by the Election Tribunal. The respondent appealed the Tribunal’s decision to the High Court at Patna, and the High Court set aside the Tribunal’s order. The appellant then appealed to this Court. Only one of the grounds on which the election petition was based has been canvassed before this Court, and therefore the judgment will consider that ground alone. The respondent alleged that the appellant published and distributed among the electors two leaflets, identified as Exhibit I and Exhibit II, which purportedly appealed for votes on religious grounds.

In the matter before the Court, the petitioner alleged that the respondent had published and disseminated two pamphlets, identified as Exhibit I and Exhibit II, to the electors of the constituency, and that the content of those pamphlets appealed for votes on the basis of religion, thereby constituting the corrupt practice of systematic appeal on religious grounds prohibited by section 123(3) of the Representation of the People Act, 1951. It was further asserted that the respondent himself, as well as his agents, had solicited votes by reading the pamphlets aloud, explaining their contents, and delivering speeches that appealed to religious sentiment, actions which, if proven, would amount to the same prohibited corrupt practice. The petitioner submitted that proof of these corrupt practices would require the nullification of the respondent’s election. The Election Tribunal examined the evidence and concluded that the Jharkhand Party had arranged for the printing of the pamphlets and that Exhibit I indeed contained an appeal for votes founded on religious considerations, whereas Exhibit II did not. The Tribunal further held that the burden of demonstrating that the pamphlets had been distributed and that the speeches had been made rested upon the petitioner, and it found that the petitioner had failed to meet that burden; consequently, the Tribunal dismissed the election petition. On appeal, the High Court held that both pamphlets contained appeals on religious grounds and concurred with the Tribunal’s finding that the Jharkhand Party had printed the pamphlets. However, the High Court disagreed with the Tribunal’s determination that the petitioner had not proved distribution of the pamphlets and the making of the speeches. After independently evaluating the evidence, the High Court concluded that the evidence was sufficient to establish that the pamphlets had been distributed and that the speeches had been delivered by the respondent or by his agents acting at his direction, with his knowledge or consent. Accordingly, the High Court set aside the Tribunal’s order and declared the respondent’s election void. The principal issue before the Court was whether the pamphlets constituted an appeal on religious grounds. The Court observed that Exhibit II did not contain any such appeal, and therefore found no need to elaborate on the reasons for deviating from the High Court’s view on that pamphlet. The Court, however, found that Exhibit I did contain an appeal on religious grounds. The text of Exhibit I was reproduced as follows: “In the box of the Jharkhand Party is printed the symbol of Cock. Put your votes in the box with Cock symbol. ‘O’ rise ye children of men – Respected sons of men open your eyes, lend your ears. Recognise me and my crow. In your services and worships in the Worship of your forest God (Buru) in stomach pain and headache at the time of your distress and miseries I am with you even after giving my life. You recover (from illness) even by applying knife at my neck. This thought gives me pleasure. In exchange of this give me chara in the shape of vote. I am victorious. Do not forget me, otherwise I tell, ye sons of men will suffer eternal miseries. Crow of Cock, Cock crowed.”

In this case the Court examined the pamphlet identified as Exhibit I, which will be referred to simply as the leaflet. The leaflet was printed in Devanagari script, but the language employed was the Ho language. It was presented in a verse form, and the first line was described as a heading that was not part of the verse, although that distinction had no material effect on the analysis. The Court observed that the content of the leaflet was predominantly concerned with a cock. It was stated that the reference to the cock was intended to invoke the religious sentiments of the Adibasis, and there was no dispute that the Adibasis frequently offered cocks as sacrifices to their deities. Before analysing the leaflet itself, the Court referred to the findings of the lower courts regarding the religious practices of the Adibasis. Both the lower courts concluded that, although the cock is not a religious symbol of the Adibasis, it forms an integral component of the religious ceremonies performed in worship of several important deities. The Court then reproduced the reasoning of the High Court to illustrate how a cock is incorporated into those ceremonies. According to that judgment, one recognised mode of worship involves sacrificing cocks before the deities in order to obtain happiness and to remove miseries. The ritual requires that a cock be tied without food for two days; on the day of sacrifice the cock is taken to the place of worship, where rice is placed and prayers are offered to the Bongas, the deities. The cock is then placed near the rice. If the cock pecks at the rice, the Adibasis interpret this as a sign that the Bongas are pleased, and they proceed to sacrifice the cock. If the cock does not peck, they consider the deities displeased, continue praying, and repeat the ritual until the cock pecks before it is sacrificed. The Court also cited the District Gazetteer as quoted in the Tribunal’s judgment, which described the belief of the Hos that all spirits, whether inherently malignant or not, generally require continual propitiation through sacrifices because, unless placated, they can become a source of evil. Illness, for example, is commonly ascribed to the influence of a Bonga, and the severity and persistence of the disease dictate the size of the animal to be offered. The sequence of offerings begins with a fowl; if that proves ineffective, a goat is sacrificed; if the goat fails to bring relief, larger animals such as a sheep, a calf, a cow, and finally a buffalo are immolated in succession to appease the offended spirit.

The Court observed that the factual description contained in the District Gazetteer had been accepted by the lower courts as an accurate depiction of the religious customs and sentiments of the Adibasis community. Turning to the language of the pamphlet that was under consideration, the Court found that the document was unmistakably intended as an appeal directed toward the electorate. The Court noted that the segment of the electorate to which the appeal was aimed consisted principally of members of the Adibasis community. Furthermore, the Court concluded that the appeal was presented in the persona of a cock; the pamphlet terminated with the expression “Yours only cock.” The pamphlet employed the first‑person pronouns “me” and “I” on several occasions, and, in the Court’s view, these pronouns unequivocally referred to the cock rather than to any human individual. Although it had been suggested that in certain passages the pronouns might refer to the appellant, the Court declared that such an interpretation was untenable because it did not fit the overall context of the material.

Consequently, the Court held that the pamphlet appeared to be an appeal issued by the cock itself, proclaiming that the bird served the community even at the cost of its own life and that, in return for these services, “chara”—the term used for food—should be offered in the form of votes. The Court explained that this request for “chara” in the shape of votes could be understood only to mean that votes should be cast in the ballot box bearing the cock symbol, which, in turn, identified the candidates of the Jharkhand Party, including the appellant. Referring back to the earlier discussion of the Adibasis religious ceremonies, the Court observed that the pleasure of the deities was signaled when the cock pecked at the food placed before it, after which the deities permitted the sacrifice of the cock. Accordingly, when the pamphlet urged that food be given to the cock in the form of votes, the intended meaning was that the deities would be pleased if voters selected the candidates marked by the cock symbol.

The Court further pointed out that the pamphlet’s reference to the religious rites involving the sacrifice of the cock and the consequent alleviation of pain and misery was plainly a reference to religion. The Court found that any alternative meaning would render the inclusion of the religious ceremonies inexplicable, because the reference to the sacrificial cock was clearly meant to convey the notion that the deities’ pleasure was being sought. The Court reminded that, according to the customary practice, a cock was sacrificed only after it had pecked at the offered food, an act that demonstrated the deities’ approval. This fact, the Court said, left no doubt that the pamphlet’s allusion to the sacrifice of the cock was intended to indicate the attainment of divine pleasure.

When the cock in the pamphlet declared “give me chara in the shape of vote,” the Court interpreted the statement to mean, in substance, that casting such votes would cause the deities to be pleased. The Court concluded that any interpretation other than the one articulated would make the pamphlet incomprehensible. Finally, the Court noted that an argument had been advanced suggesting that the pamphlet implied that, like the sacrificial cock, the candidate—the appellant—was prepared to lay down his life for the good of the community. The Court found no language in the pamphlet that supported this implication and therefore rejected that view.

In this case the Court examined whether the pamphlet sought to portray a religious appeal that would compel the electorate to vote for a particular party. The Court observed that the pamphlet did not contain any wording that indicated a dedication to the good of the community. Moreover, the Court found that there was no passage in the pamphlet that likened the sacrificial cock to the appellant. In fact, the pamphlet made no mention of the appellant at any point. The Court also reiterated a previous observation that the pronouns “I” and “me” appearing in the pamphlet were not used in a manner that referred to the appellant. The sentence in the pamphlet that read, “do not forget me otherwise I tell, ye sons of men will suffer eternal miseries,” was interpreted by the Court as a direct invocation of divine wrath against voters who might neglect the cock, which the Court understood as a symbolic reference to failing to vote for the party represented by the cock. The Court explained that the pamphlet equated a vote with the food offered to the sacrificial cock and stated that the gods would be displeased and the cock would refuse the offering if the appropriate party were not supported. Consequently, the Court concluded that the pamphlet constituted an appeal on religious grounds, because it suggested that not voting for the party would amount to an irreligious act. The Court noted that such an appeal could fall within the category of undue influence described in section 123(2)(a)(ii) of the Representation of the People Act, 1951, when directed at an individual elector. However, the Court observed that, as will be shown later, the appeal in the present matter was made systematically to a large segment of the electorate. The Court explained that when the pamphlet is circulated widely, the conduct would attract the operation of section 123(3) of the Act, thereby constituting a corrupt practice involving a systematic religious appeal. The Court stated that it is evident that a claim that voting in a particular manner is a religious duty is an appeal on religious grounds, and equally evident that a claim that failing to vote in that manner would be contrary to religion is also an appeal on religious grounds. Accordingly, the Court agreed with the lower courts that the pamphlet contained an appeal on religious grounds. The next issue for determination was whether the appeal was systematic. This factual question required an inquiry into whether the pamphlet had been disseminated among the electorate and whether speeches echoing its content had been delivered, thereby making a religious appeal on behalf of the appellant and his supporters with his knowledge and consent, as alleged in the petition. The Court recalled that the Tribunal had held that the respondent failed to prove that the pamphlets had been distributed or that the speeches had been made, whereas the High Court had reached a different conclusion. The Court observed that it is normally the practice of this Court to accept the factual findings of the court immediately below, and it found no justification to depart from that practice in the present case. The Court further indicated that it was not persuaded by the reasons offered by the Tribunal for rejecting the respondent’s evidence on this point, noting that the Tribunal had expressed its view that the evidence was discrepant.

The Tribunal had concluded that the evidence offered by the respondent was discrepant. One discrepancy that the Tribunal identified related to the number of persons who had attended the “Hats” – the markets – where the meetings were allegedly held and where the leaflets were said to have been distributed and the speeches delivered. The Tribunal observed that it was impossible to provide an exact head‑count for an assembly that could have consisted of two, three or more thousand individuals. A second discrepancy noted by the Tribunal concerned the precise hour at which the meetings took place. The Tribunal held that, given the lapse of considerable time, it would be unreasonable to expect any witness to recall the exact hour of a large gathering, and that minor variations in the times recalled by different witnesses should not be a basis for rejecting their testimony. A further ground for rejection, according to the Tribunal, was the assertion that the contents of the leaflet had been explained and the speeches had been delivered in both Hindi and the Ho language, a combination the Tribunal considered unlikely. The Court did not regard this observation as unusual. It noted that, besides the Ho community, there were other Adibasi groups present, and there was no evidence that every individual present understood Ho. Moreover, the gatherings at the “Hats” also included communities other than the Adibasis who neither spoke nor understood the Ho language. The Court further observed that the declared objective of the Jharkhand Party was to embrace all communities residing in the Jharkhand region, rather than to limit its appeal solely to the Adibasis. Consequently, it was plausible that the speeches and explanations were also rendered in Hindi to reach a broader audience. The High Court, in its analysis, referred to a witness belonging to the appellant who affirmed that meetings were convened and that leaflets were distributed by the appellant and his workers, although the witness did not specify the content of the speeches or the leaflets. The High Court correctly pointed out that the Tribunal’s finding that the leaflet had been printed at the instance of the appellant’s party served to corroborate the respondent’s witnesses’ evidence that the same leaflet had been distributed on the appellant’s behalf. Considering all these matters, the Court found no justification for doubting the portion of the respondent’s evidence that asserted the leaflet had been orally explained and that speeches had been made on its basis. The evidence demonstrated that, during the speeches, it was asserted that the “cock” desired voters to cast their votes in favour of the appellant and that the gods would be pleased by such a result. Accordingly, even if a different interpretation of the leaflet’s intended meaning were adopted, the record showed ample evidence of a systematic appeal for votes, made orally by the appellant or by his agents, with his knowledge, on the ground of religion. This conclusion, as held by the High Court, would

By itself the conduct described was held to constitute a corrupt practice by the appellant and to make his election liable to be avoided. Accordingly, the Court agreed with the view taken by the High Court and dismissed the appeal with costs. Justice Subba Rao then noted that he had read the judgment prepared by his learned brother, Justice Sarkar, and expressed regret that he could not agree with that judgment. He observed that the facts had been fully set out in the earlier judgment and therefore he need not repeat them. He recorded that the High Court had made two findings: first, that by issuing Exhibits I and II the appellant had appealed to the electorate to vote for him on religious grounds; and second, that on behalf of respondent No. 1 a number of meetings had been held in various parts of the constituency in which appeals based on Exhibits I and II were made. Justice Subba Rao clarified that he did not read the second finding to mean that the appeals made at those meetings were different from those disclosed in Exhibits I and II. Rather, the first finding concerned only the content of the appeals, while the second finding was confined to the systematic nature of those appeals. He further explained that the learned judges, while dealing with the issue of systematic appeals, recognised that each witness might give a slightly different account of what was seen and heard at the meetings. Consequently, the judges accepted the version of the witnesses that a series of meetings had been held in which Exhibits I and II were read aloud and explained in Hindi. Justice Subba Rao therefore proceeded on the basis that what was read at the meetings was limited to the contents of Exhibit I. The only question that remained, he said, was how to interpret the contents of Exhibits I and II.

At the outset, Justice Subba Rao excluded Exhibit II from further consideration because that document did not contain any appeal to vote on religious grounds. Accordingly, both the appellant’s learned counsel and the respondents had rightly focused their attention on Exhibit I. Since the argument turned on the wording of that document, Justice Subba Rao read the entire text of Exhibit I, which stated: “In the box of the Jharkand Party is printed the symbol of Cock. Put yours votes in the box with Cock symbol ‘O’ rise ye children of men – Respected sons of men open yours eyes, lend your ears, recognise me and my crow. In your services and worships In the worship of your forest God (Buru) In stomach pain and head‑ache At the time of your distress and miseries I am with you even after giving my life. You recover (from illness) even by applying knife at my neck. This thought gives me pleasure. In exchange of this give me chara in the shape of vote. I am victorious. Do not forget me, otherwise I tell, ye sons of men will suffer eternal miseries. Crow of Cock, Cock crowed, rise now, open your eyes, be prepared for duty, yours only Cock.” Having set out the full wording, Justice Subba Rao indicated that the remaining task was to determine whether the language of Exhibit I amounted to a systematic appeal on the basis of religion, which would invoke the prohibition contained in the Representation of the People Act, 1951.

Before examining the contested document, the Court found it necessary to recite the relevant provisions of the Representation of the People Act, 1951, which it referred to as the Act. Section 123 of that Act enumerated certain acts as corrupt practices for the purpose of the legislation. Clause (3) of the section specified that a systematic appeal by a candidate, his agent, or any other person to vote or to refrain from voting on the basis of caste, race, community, or religion, or an appeal to religious symbols, or an appeal to national symbols such as the National Flag or the National Emblem, for the purpose of furthering the prospects of the candidate’s election, would be deemed a corrupt practice. The material portion of the section that was relevant to the present enquiry prohibited a systematic appeal to vote or to refrain from voting on religious grounds. Because the section defined corrupt practices that could invalidate an election, the Court emphasized that it was a penal provision and therefore required a strict construction. The provision therefore struck at any canvassing of votes for, or against, a candidate on the basis of religion. The Court illustrated that a person A could ask a person B to vote for A on the ground that both belonged to the same religion, or that a person C could ask a person B to vote for A because A and B professed the same religion, or that C could urge B not to vote for D because D adhered to a religion different from B’s. Such examples represented direct appeals to religion as a ground of preference. The Court further noted that an appeal might also be indirect but, by necessary implication, invite voting on religious considerations. Consequently, the essential requirement, the Court held, was that the appeal, either expressly or by necessary implication, must seek votes on the basis of religious affinity or religious conflict. The Court observed that the section was not intended to forbid appeals made in picturesque or metaphorical language that drew analogies from mythology, religion, or folklore. In constituencies where most voters were illiterate, a candidate or his agent might have to attract and enthuse the audience by employing parables, similes, or metaphors derived from religious lore, which the people understood and appreciated. Accordingly, the Court said that a distinction must be drawn between canvassing on the ground of religion and seeking votes in graphic or picturesque language employing analogies from religious lore. To illustrate, the Court explained that a candidate could address an electorate comprising Hindus, Muslims, Christians and others, and say that he would sacrifice his life for his constituency just as Christ sacrificed his life to redeem the world. He might also say that, like Rama, he would defeat the evil represented by corruption and nepotism if elected, or that he would sacrifice himself as a goat before the goddess Kali to bring happiness and prosperity to his constituency. All of those similes, the Court observed, were drawn from religion, yet they did not constitute an appeal, directly or indirectly, to vote for the candidate on the basis of religion.

In examining the document that was challenged, the Court first considered whether it contained a request for votes on the basis of religion. The invitation to vote was directed at an electorate that included voters of many faiths, although a substantial portion of the electorate belonged to the Adibasis community. The address could have been delivered at public meetings by individuals who were not members of the Adibasis and could have been heard by audiences that either did or did not include members of that community. The Election Commissioner had assigned the cock as the electoral symbol to the Jharkhand Party without any objection, even though the Party’s membership was largely composed of persons other than Adibasis. The language of the appeal was poetic and picturesque. It began by stating that the symbol of the Jharkhand Party is a cock and that this cock is printed on the Party’s ballot box. The document then urged voters to place their votes in the box bearing the cock symbol. It further called on voters to open their eyes and recognise the box and the cock on it. Subsequently, the appeal proceeded by means of a parable. In the text, the cock depicted on the box and the sacrificial cock were not distinguished, and the whole address was presented in metaphorical terms. If the metaphor were taken literally, the passage would suggest that the cock on the box willingly sacrifices its life to relieve the people’s ailments such as stomach‑ache or headache, and that it asks the electors to give “food in the shape of a vote”; it further warns that if no such “food” is offered, the people will endure eternal misery. A literal reading, however, fails to convey a clear meaning. When the metaphor is expanded, the only reasonable interpretation is that the speaker, identified as “I, the cock in the box,” represents the candidate or the Party, which promises to sacrifice its own life for the welfare of the constituency, just as a cock that sacrifices itself brings happiness to the people; likewise, if the constituency does not feed the cock – that is, if it does not vote for the candidate or the Party – the people will suffer perpetual hardship. The Court noted that the document makes no explicit reference to the Adibasis community or to their religion. At most, the document admits two possible readings: one that provides an intelligible political appeal, and another that could be construed as an ambiguous statement suggesting corrupt practice. In the circumstances, the Court preferred to adopt the interpretation that favored the elected candidate and to uphold his election rather than to infer corrupt practice on doubtful grounds and to set aside the election. The Court also considered another facet of the matter, namely the religion of the Adibasis. It observed that the Adibasis are a backward community and do not appear to possess a highly developed religious system; it was presumed that they are Hindus. The Court then remarked on the peculiarity of the Hindu religion, describing its universality and its worship of gods, goddesses, and even of trees and

In this case, the Court observed that the belief system of the Adibasis, who are Hindus, includes a Vedantic philosophy that elevates human beings to a divine status. These Adibasis traditionally offer sacrifices to various spirits that they believe control specific diseases and misfortunes. The type of animal offered as a sacrifice varied according to the severity of the calamity they sought to avoid, ranging from a cock for minor troubles to a buffalo for more serious threats. The Court noted that such animal sacrifices are not unique to the Adibasis; many other backward communities throughout India also perform similar rites, offering animals as a conventional means of propitiating spirits and deities. The animal that is sacrificed, the Court explained, is not itself an object of worship; it serves merely as a practical medium for the ritual. Consequently, the Court held that any reference to a sacrificial bird or animal could not be interpreted as a reference to religion. To expand the ground for disqualification on the basis of religion would be inappropriate, because the practice of animal sacrifice is widespread among numerous backward groups, not confined to the Adibasis alone. For these reasons, the Court concluded that Exhibit I did not contain any appeal by the appellant for votes on religious grounds. Accordingly, the Court set aside the order of the High Court, dismissed the election petition, and awarded costs. In accordance with the majority opinion, the Court ordered that the appeal be dismissed with costs.