Sheopat Singh vs Ram Pratap

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 558 of 1964

Decision Date: 28 August 1964

Coram: K. Subba Rao, M. Hidayatullah

The matter involved Sheopat Singh as the petitioner and Ram Pratap as the respondent, and it was decided on 28 August 1964 by the Supreme Court of India. The judgment was authored by Justice M. Hidayatullah, who sat on the bench together with Justice K. Subbarao. The case is reported in 1965 AIR 677 and 1965 SCR (1) 175, and it appears in several citator references including RF 1967 SC 808, R 1969 SC 677, RF 1969 SC 1201, D 1970 SC 1231, R 1970 SC 1841, R 1971 SC 1262, R 1971 SC 1943, RF 1975 SC 2299, and others. The statutory provisions that were considered are sections 82(b), 85 and 123(4) of the Representation of the People Act, 1951, which relate respectively to the parties necessary to an election petition, the ground for dismissal of a petition, and the definition of a corrupt practice involving allegations about personal character. The headnote of the decision records that the election of the appellant to a seat in the Legislative Assembly of the State was contested by the respondent, who was an elector, on the basis that the appellant had caused a poster to be published that contained a statement of fact concerning the personal character and conduct of a rival candidate. The respondent alleged that this act constituted a corrupt practice under section 123(4) of the Representation of the People Act, 1951. The election tribunal initially dismissed the petition, but the Rajasthan High Court reversed that decision. On appeal to the Supreme Court, the petitioner argued that (i) the poster did not fall within the ambit of section 123(4) and (ii) the petition should have been dismissed under section 85 because another candidate, against whom allegations of corrupt practice were made, had not been impleaded.

The Court held that section 123(4) serves the dual purpose of safeguarding freedom of speech while preventing malicious attacks on the personal character and conduct of political rivals. It clarified that a statement that reflects on a person’s mental or moral character qualifies as a reflection on personal character, whereas criticism of a person’s political activities or public policies does not fall within that scope. The provision further requires that the person making the statement either knows it to be false or does not believe it to be true, and that the statement must be reasonably calculated to prejudice the electoral prospects of the candidate against whom it is directed. The Court explained that the term “calculated” means designed; it signifies more than mere likelihood and denotes an intention to influence voters. Applying these criteria to the evidence on record, the Court concluded that the appellant, by publishing the poster, committed a corrupt practice as defined by the subsection. The Court referred to the authorities T. K. Gangi Reddy v. M. C. Anjaneya Reddy (1960) 22 E.L.R. 261 and Inder Lal v. Lal Singh, [1963] Supp. 3 S.C.R. 114 in reaching this conclusion. Regarding the candidate who had not been impleaded, the Court observed that the only allegation in the election petition was that the appellant had caused the poster to be published through that candidate and others, but there was no allegation that the candidate believed the statement to be false. Consequently, without such an allegation, the provisions of section 82(b) could not be invoked against the non‑impleaded candidate, and the penal provisions of section 85 were not attracted, so the petition could not be dismissed on that ground.

In the absence of any allegation that the candidate either believed the statement to be false or did not believe it to be true, the Court could not conclude that there was any allegation of corrupt practice within the meaning of section 82(b) of the Act against that candidate. The Court further observed that, under section 123(4), a guilty mind is a necessary element of a corrupt practice; consequently, a person who publishes a statement, even if he is not the author, does not commit a corrupt practice unless he possesses the required knowledge of its falsity. Because no allegation of corrupt practice had been made against the candidate who was not impleaded, the penal provisions of section 85 were not attracted, and the election petition could not be dismissed on that ground. The judgment then set out the procedural history of the case. The matter arose as Civil Appeal No. 558 of 1964, filed by special leave from the judgment and order dated 16 December 1963 of the Rajasthan High Court in D. B. Election Appeal No. 74 of 1963. Counsel for the appellant and counsel for the respondent were respectively instructed. The Court recorded that the appellant, Sheopat Singh, together with Ramchander Chowdhary and Suria Ram, had contested the election for a seat in the Rajasthan Legislative Assembly from the Hanumangarh constituency. The appellant obtained 1,285 votes, Ramchander Chowdhary received 18,217 votes, and Suria Ram also received 1,285 votes, resulting in the appellant being declared elected. One of the electors filed an election petition under section 81 of the Representation of the People Act, 1951, seeking to set aside the appellant’s election on various grounds. The Election Tribunal, by its order dated 18 June 1963, held that the petitioner had failed to substantiate the allegations against the appellant and dismissed the petition. The petitioner then appealed to the High Court of Judicature for Rajasthan at Jodhpur. A division bench of that Court concluded that the appellant was guilty of a corrupt practice under sub‑section (4) of section 123 of the Act by publishing poster Exhibit 3, which contained a statement of fact concerning the personal character and conduct of Ramchander Chowdhary, one of the candidates. On that finding, the High Court set aside the Tribunal’s order and declared the appellant’s election void. By way of special leave, the appellant appealed this order to the Supreme Court. Counsel for the appellant raised two points before the Court: first, that Exhibit 3, the poster published and circulated by the appellant, did not fall within the provisions of section 123(4) of the Act; and second, that the election petition should have been dismissed under section 85 of the Act because it had not impeded Hariram, another duly nominated candidate who had withdrawn his candidature before the election and against whom allegations of corrupt practice had been made.

In this case, the learned counsel for the appellant advanced a first argument concerning the applicability of section 123(4) of the Act to the poster identified as Exhibit 3. The counsel explained that, under section 123(4), the burden of proof rested on the person who alleged a corrupt practice to establish every element of the provision. Specifically, the claimant had to demonstrate that the candidate had published a false statement of fact concerning the personal character or conduct of another candidate, that the candidate either knew the statement to be false or did not believe it to be true, and that the statement was reasonably calculated to prejudice the other candidate’s electoral prospects. Moreover, the claimant needed to show that voters were aware that the false statement was attributed to the candidate and, as a consequence of that knowledge, chose not to vote for the candidate. The counsel pointed out that Exhibit 3 contained only general allegations about the misrule of the Congress Party. Even if those statements could be linked to Ramchander Chowdhary, there was no evidence that the electorate recognised that the poster referred specifically to him. Consequently, the first issue for determination was whether Exhibit 3 fell within the scope of section 123(4). Before analysing the content of the document, the counsel found it useful to set out the ingredients of the statutory provision. Section 123(4) provided: “The publication by a candidate or his agent or by another person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate’s election.” The counsel dissected the subsection into five relevant components: (1) the publication of a statement of fact by a candidate; (2) the falsity of that fact; (3) the candidate’s belief that the statement was false or his lack of belief in its truth; (4) the relation of the statement to the personal character or conduct of the candidate; and (5) the calculation that the statement was reasonably likely to prejudice the other candidate’s election. The counsel then emphasized that an election represents the expression of the popular will and must be conducted so that the electorate’s choice reflects the policy of the party the candidate represents and the merits of the candidates. This objective required the protection of free speech at elections, allowing voters to be informed of both the political and personal merits and demerits of the candidates. At the same time, the counsel warned that the electoral process should not descend into a campaign of vilification aimed at destroying the personal character or conduct of the candidates.

In this case, the Court noted that the subsection was intended to serve two goals: to protect freedom of speech and to prevent malicious attacks on the personal character or conduct of political rivals. The objective was to preserve the purity of an election while still allowing open expression. Accordingly, the provision prohibited any statement of fact concerning the personal character or conduct of a candidate that was false and that the person making it either believed to be false or did not believe to be true. This wording implied that a statement about a candidate’s personal character or conduct could be lawfully made if it was true. Even when a statement was false, the maker remained protected only if he made it in good faith, without believing it to be false or doubting its truth; such bona‑fide false statements fell outside the scope of the provision.

The Court explained that for a statement to fall within the mischief of subsection (4) of section 123, it must satisfy an additional requirement: the statement must be reasonably calculated to prejudice the electoral prospects of the candidate against whom it was directed. The term “calculated” was interpreted to mean designed, indicating more than a mere likelihood and showing an intention to influence voters. Although the element is subjective, the actual effect of the statement on the electorate could be used to determine whether it was reasonably calculated to achieve that effect. The emphasis, the Court said, lay on the calculated effect rather than on the actual election result, although the latter could help establish the former. Importantly, the Court stressed that it was not necessary to produce positive evidence that voters, having heard the statement, were turned away from voting for the targeted candidate.

The Court then turned to the burden of proof, citing the judgment in T K Gangi Reddy v M C Anjaneya Reddy. In that decision, the Court observed that “Burden of proof has two distinct meanings, viz., (i) the burden of proof as a matter of law and pleading, and (ii) the burden of proof as a matter of adducing evidence........... The first remain‑constant and the second shifts.” The Court explained that the legal and pleading burden rested on the respondent who sought to have the election set aside, while the evidentiary burden shifted to the appellant once the respondent had adduced sufficient evidence. After all evidence was presented, the Court held that the question of who bore the burden became merely academic. The Court further observed that the High Court had examined the entire evidence and concluded that the respondent had proved his case, and that no error was committed by the High Court in that regard.

In reviewing the matters before it, the High Court examined the material evidence and determined that the respondent had successfully proved the allegations he raised. The Court observed that no mistake was made by the High Court in reaching this conclusion.

The Court then turned to an essential element of the statutory sub‑section, namely that a statement must be directed at the personal character or conduct of another candidate. The Court asked what the phrase “personal character or conduct” truly means. This issue had previously been addressed by the Court in two reported decisions.

In the first decision, cited as Gangi Reddy’s case (1), the Court explained at page 266 that the words “personal character or conduct” are self‑explanatory and do not require further definition. The Court said that a person’s character normally refers to his mental or moral nature, while conduct refers to a person’s actions or behaviour. The Court illustrated the point by noting that alleging a person instigated a murder or was guilty of violent acts in his political career would be highly damaging to his character and conduct.

The second decision, reported as Inder Lal v. Lal Singh (2), dealt with the distinction between private and public character. The Court observed that commentators sometimes refer to the “man beneath the politician” and explain that a factual statement that affects that “man” touches private character, whereas a statement that merely affects the politician does not touch private character. After discussing statements that clearly impact private character, the Court added that some cases lie on the borderline, where a false statement may affect both the politician and the person behind the politician. In such borderline situations, the Court warned, it becomes difficult to decide whether the false statement amounts to a corrupt practice.

The Court noted that it was unnecessary to cite additional authorities mentioned at the Bar. It reaffirmed that the line separating personal character and conduct from public character and conduct is generally well drawn, although at times it may be thin. Occasionally a statement appears to affect both the candidate’s personal and public character, but a careful examination enables the Court to determine whether the impact is on personal character or on public character.

To illustrate this analysis, the Court gave a hypothetical example. Suppose a statement alleges that a minister accepted a bribe in connection with an appointment or a contract. Although the alleged bribe might have been taken while the minister was performing his official duties, the act of accepting a bribe does not merely reflect on his public character. Accepting a bribe is unrelated to the discharge of official responsibilities; instead, it reflects on the minister’s moral and mental disposition. The minister’s position may have provided the opportunity to receive a bribe, but the act itself is primarily attributable to a defect in his personal character.

The Court held that any statement which reflects on a person’s mental or moral character is a reflection on that person’s personal character, whereas criticism of a person’s political or public activities and policies lies outside that category. The Court further observed that the fact a statement is made during a political or public activity does not diminish its character as a comment on personal character or conduct. Determining the appropriate category for a particular statement, the Court said, is a question of fact in each case. Turning to the material labelled Exhibit 3, the Court described it as a large poster in which certain portions were printed in bold type. A large photograph of the appellant appeared in the upper‑right corner of the poster and, at the bottom, the symbol of the Communist Party was shown. The poster contained the following text: “Bounties of the Cement of the Rajasthan Canal.—Cinema of seven lakhs in Ganganagar and magnificent kothis in the neighbourhood of Jaipur’s ‘Rajmahals’. Open loot in liquor contracts by Gandhi’s devotees and improper transfer of lands. Hanumangarh’s gentlemanliness, honest and public welfare faced with the corrupt, permit‑loving and ‘police‑raj’ of the Congress. Give proof of bravery, modesty and selflessness by giving vote to Sheopatsingh Makkasar who would bravely sacrifice himself for the glory and prestige of Hanumangarh. Election (Ears of corn and sickle) Symbol—Vote for ears of corn and sickle, the symbol of prosperity, progress and popular rule.” Counsel for the appellant argued that the poster did not exceed the bounds of reasonable criticism of the opposing candidate and that it merely made a general statement that, under Congress rule, many corrupt practices were being ignored and that the appellant, if elected, would correct those defects and restore the glory and prestige of Hanumangarh. The Court noted that it was unnecessary to determine whether every alleged misdeed narrated in the poster referred to Ramchander Chowdhary, because the Court was satisfied that the first paragraph of the poster clearly and reasonably referred to his activities. The Court explained that the vernacular word for “bounties” is “barkatain” and that, according to the first paragraph, the cinema theatre costing Rs 7 lakhs in Ganganagar was described as the barkat of the cement of the Rajasthan Canal. This implied that, by misappropriating the cement of the Rajasthan Canal, a cinema theatre worth Rs 7 lakhs had been constructed. The Court observed that, on its face, the poster did not specify who had misappropriated the cement or to whom the cinema belonged. However, when read in the context of well‑known facts, the Court held that the only reasonable inference was that the misappropriation was attributable to the minister in charge of the canal project at the relevant time, namely Ramchander Chowdhary. The Court further recorded that, during the election period in Ganganagar, a cinema theatre known as Adarsh Theatre was being erected, and that the appellant and his agent had admitted that the theatre referred to in the poster was indeed the Adarsh Theatre and that it belonged to Ramchander Chowdhary and his sons.

In this case the Court observed that the wording of the poster was intended to convey that Ramchander Chowdhary, while acting as the minister in charge of the Rajasthan Canal project, had misappropriated cement belonging to that canal and had used the proceeds of that misappropriation to construct a large cinema theatre in the name of his sons. The Court therefore held that the allegation of misappropriation was expressly attributed to Ramchander Chowdhary himself. By stating that a minister had diverted cement under his control and had funded the erection of a theatre with the resulting benefit, the poster inevitably reflected upon the personal character and conduct of the minister. Counsel for the appellant argued that the language of the poster could be interpreted to mean that a person other than the minister might have stolen the cement, sold it on the black market, and that the Ganganagar cinema theatre could have been built from cement purchased in that manner. The Court found this interpretation to be an artificial and strained reading of the clear statements made in the first paragraph of the poster. The term “barkatain” was understood to indicate that the amount of Rs 7 lakhs was derived from the cement intended for the canal. The Court noted that if the minister or his sons had bought cement from the black market, the building could not be described as the “bounty” of the canal’s cement; in such a scenario only cement illegally taken by some other individual would have been used, and the cost of constructing the theatre would have been borne by the minister and his sons from their own resources, not from the alleged gift of canal cement. Accordingly, the Court concluded that the first paragraph of the poster directly impugned the personal character of Ramchander Chowdhary. Nevertheless, counsel for the appellant also contended that it had not been shown that the appellant made the statement believing it to be false or without belief in its truth. The Court turned to the evidence of PW 4, Dharam Pal, who supervised the construction of the cinema and testified that four thousand bags of cement had been used, of which two thousand bags came from the Sawai Madhopur cement factory, 1,585 bags from the Charkhidadri factory, and the remaining 415 bags were procured locally under permits issued by the relevant department. The High Court had accepted this testimony. Moreover, the appellant had failed to produce any evidence to rebut the respondent’s evidence, and the appellant’s own witness, DW 7, affirmed on oath that Ramchander Chowdhary was an honest man. In view of this evidential state, the burden of proof rested on the respondent, who had discharged it, and the High Court was rightly said to have found in his favour. The appellant further argued that there was no evidence that the statement was intended to prejudice the electoral prospects of Ramchander Chowdhary. The appellant questioned how the statement could deter voters from supporting the minister if the electorate was unaware that the Ganganagar cinema theatre belonged to him or his sons.

There was no evidence in the record that any voter knew that the cinema theatre in Ganganagar was owned by Ramchander Chowdhary or by his sons. The appellant relied on decisions rendered in libel actions, specifically Nevill v. Fine Art and General Insurance Co. Ltd. (1) where Lord Halsbury, L.C., held that a questioned document must be taken in a defamatory sense by the persons to whom it was published, according to the primary meaning of the language used. The appellant also cited The Capital and Counties Bank Ltd. v. George Henty & Sons (2), in which the test for defamation was whether reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense. In that case the House of Lords concluded that the test was not satisfied. The appellant used this test to argue that voters should have known that the first paragraph of the poster referred to Ramchander Chowdhary, because without such knowledge the statement could not have prejudicially affected his election prospects. The Court, however, noted that the present matter does not involve a libel action and therefore refrained from applying libel principles or expressing any opinion on them. The only issue to be decided was whether the statement was reasonably calculated to prejudice the prospects of Ramchander Chowdhary’s election, as required by section 123(4) of the Act. The appellant had not contested, either before the Election Tribunal or before the High Court, that voters lacked knowledge that the cinema theatre at Ganganagar belonged to Ramchander Chowdhary or his sons.

The Court observed that the purpose with which a statement is made is the crucial test. It was established that the cinema theatre in Ganganagar belonged to the sons of Ramchander Chowdhary and that Ramchander Chowdhary himself was the minister‑in‑charge of the Rajasthan Canal, making him the only effective candidate opposing the appellant. Consequently, the appellant’s intention in issuing the statement was obvious: to attack the personal character of Ramchander Chowdhary in order to prejudice his electoral prospects. The Court held that the appellant must have reasonably calculated that voters, at least those in the locality where the cinema theatre was being constructed, knew that the building was being erected by the minister or his sons. It could not be said that voters in and about Ganganagar would be unaware of the ownership of a large cinema theatre costing seven lakh rupees. The fact that the building was used as a vehicle to attack the personal character of Ramchander Chowdhary, a rival candidate, clearly indicated that the appellant knew of the voters’ knowledge and expected the statement to create the intended impression.

The Court noted that the appellant possessed knowledge that the electorate was aware of the ownership of the cinema theatre and that the appellant anticipated the statement would generate the impression which it clearly intended to convey. In view of these facts, the Court held that the High Court’s determination that the statement was reasonably calculated to prejudice the rival candidate’s electoral prospects was supported by the evidence and the facts admitted before the High Court. The Court further observed that this conclusion was a reasonable inference drawn from the factual findings of the High Court. Accordingly, the Court affirmed that Exhibit 3 fell within the ambit of section 123(4) of the Act, and consequently confirmed that the High Court was correct in finding the appellant guilty of a corrupt practice.

To address the second contention, the Court recapped the relevant facts. Hariram, the appellant’s father, had been one of the individuals who initially stood for election and whose nomination paper had been validated; subsequently, Hariram withdrew his candidature. The election petition alleged that the appellant obtained from Iqbal Printing Press, Sri Ganganagar, hundreds of thousands of posters and leaflets containing severely defamatory and false imputations against Ramchander Chowdhary, and that the appellant, through his workers and supporters, caused these materials to be displayed at prominent locations in every village of the constituency and distributed freely among the electors. An annexure listed the distributors of the posters and leaflets as Sheopat Singh, the appellant, and his father Hariram, among others. However, the petition did not allege that Hariram published the statements while believing them to be false or without believing them to be true. Under section 82 of the Act, a petitioner must join as respondent any other candidate against whom allegations of corrupt practice are made. Section 85 provides that failure to comply with section 82 results in dismissal of the petition by the Election Commission. Assuming Hariram qualified as a candidate under section 82, the Court examined whether any allegation of corrupt practice was made against him. The only allegation concerned the appellant’s use of Hariram and others to disseminate the statement, without any claim that Hariram possessed knowledge of falsity. In the absence of such an averment, the Court concluded that no allegation of corrupt practice within the meaning of section 82(b) could be made against Hariram, and therefore the penal consequences of section 85 were not triggered.

The Court then considered a novel argument advanced by the respondents. That argument asserted that publication with guilty knowledge under section 123(4) constituted a composite offence comprising two elements – the false statement of fact and its publication – and thus every person participating in either element, regardless of personal knowledge, should be held guilty. Accepting this view would render an innocent servant who merely obeyed orders liable for corrupt practice, a consequence the Court found untenable. The Court emphasized that section 123(4) requires mens rea; a person who publishes a statement, whether or not he authored it, commits a corrupt practice only if he possesses the requisite knowledge. The provision does not incorporate a doctrine of constructive knowledge. Consequently, the Court upheld the High Court’s finding that the petition could not be dismissed on the ground that Hariram was omitted as a respondent. The appeal was therefore dismissed with costs.

The Court explained that the proposition that any person who participates in either element of the alleged publication would be liable for the corrupt practice, irrespective of whether that person possessed guilty knowledge, could not be accepted. If such a view were adopted, liability would extend not only to the individual who originated a false statement of fact and arranged for its dissemination through a subordinate, but also to the subordinate who merely obeyed orders without any awareness of the falsity. The Court found this contention to be manifestly untenable. It emphasized that, pursuant to section 123(4) of the Act, a guilty mind is an essential component of the offence; consequently, a person who disseminates a statement, whether or not he is the author, commits the corrupt practice only when he possesses the requisite knowledge of its falsehood. The provision, the Court held, does not incorporate the doctrine of constructive knowledge. Accordingly, the Court affirmed the High Court’s determination that the petition could not be dismissed on the basis that Hariram had not been named as a respondent. In the final analysis, the Court concluded that the appeal was without merit, ordered the appeal dismissed, and directed that the costs of the proceedings be awarded against the appellant.