The petitioner has filed the present election petition under Section 81 of the Representation of People Act, 1951 (hereinafter referred to as the Act) challenging the election of Smt. Sonia Gandhi, who was declared elected from 36 Rae Bareli Lok Sabha Constituency on 16th May, 2014. The petitioner contends that he is a resident of Rae Bareli and is also an elector and contends that the election of Sonia Gandhi should be declared void.
The facts, in brief, are that the Election Commission of India declared the election schedule for the 16th Lok Sabha on 5th March, 2014. The notification was issued on 2nd April, 2014. Smt. Sonia Gandhi filed her nomination papers on 2nd April, 2014. The polling was held on 30th April, 2014 and the result was declared on 16th May, 2014 on which date Smt. Sonia Gandhi was declared elected.
The petitioner contends that Smt. Sonia Gandhi was born on 9th December, 1946 in village Lusiana in the Republic of Italy and is a citizen of Italy. Her real name is Anotinia Manio. The respondent married Rajiv Gandhi on 25th February, 1968 and, after marriage, changed her name to Sonia Gandhi.
The petitioner contends that the respondent was granted the Indian citizenship w.e.f. 30th April, 1983 under Section 5(1)(c) of the Indian Citizenship Act, 1955 (hereinafter referred to as the Citizenship Act). The petitioner contends that under the Citizenship Act, there are two categories of citizens of India, namely, (1) citizenship as a right, i.e. citizenship acquired by a person by birth or by descent and (2) conferred citizenship, i.e. a person on whose application, the Central Government has a discretion to grant or not to grant Indian citizenship. The petitioner further contends that the conferred citizenship is of two types, namely, (a) citizenship by Registration and (b) citizenship by Naturalisation. The petitioner has made an elaborate submission contending that a person registered as a citizen of India becomes a citizen of India by a deeming fiction but is not 'actually" a citizen of India within the meaning of Article 84 of the Constitution of India and cannot be considered at par with the citizens of India by birth or by descent. In other words, only persons who are citizens by birth or by descent qualify to be citizens of India under Article 84 of the Constitution of India and, therefore, could qualify to be elected as a member of Lok Sabha. The petitioner contends that the respondent being granted a citizenship of India by registration under Section 5(1)(c) of the Citizenship Act cannot enjoy the same rights as conferred to those persons who are granted citizenship of India by birth or descent.
The petitioner, therefore, contends that the words "citizen of India" as contemplated under Article 84 of the Constitution of India refers to those persons who are citizens by birth or descent and not to those persons who have acquired citizenship of India by registration. It was thus contended that since Smt. Sonia Gandhi is a citizen of India by registration, she was not qualified to get elected as a member of the Lok Sabha under Article 84 of the Constitution of India. Further, she could not be registered as a voter in view of the provisions of Article 326 of the Constitution of India.
The petitioner further contended that Section 5(1)(c) of the Citizenship Act, 1955, Rule 4 of the Citizenship Rules, 1956 and Form III prescribed therein are unconstitutional and should be declared ultra vires the Constitution. Necessary pleadings have been spelt out in para 46 of the petition.
The petitioner further contended that the respondent is still a citizen of Italy and the laws of Italy does not permit its citizens to hold a dual citizenship. It was contended that the respondent has not renounced her citizenship of Italy and, therefore, the respondent could not become an Indian citizen.
The petitioner petitioner further contended that the respondent committed corrupt practice, namely, she made an appeal to vote on the ground of religion. The petitioner contended that as per news reports, it was revealed to the petitioner that on 31st March, 2014, Sri Rajiv Shukla a Congress Party leader, invited Syed Ahmad Bukhari to meet the respondent at her residence. The petitioner alleged that as per television news channel broadcast on 1st April, 2014, it was revealed to him that a meeting took place between the respondent and Syed Ahmad Bukhari, Shahi Imam of Jama Masjid, New Delhi which lasted for about 45 minutes, and, on coming out of the meeting, Syed Ahmad Bukhari claimed that the respondent had requested him to endeavour and ensure that the Muslim votes should not split in the upcoming Lok Sabha elections. The petitioner further contended that the television news channel report of 4th April, 2014 revealed that Syed Ahmad Bukhari in a Press Conference declared his support to the Congress Party on the basis of the meeting held with the respondent on 1st April, 2014. According to the petitioner, Syed Ahmad Bukhari appealed to the muslim community to vote for the Congress Party and ensure that the secular votes are not split.
The petitioner contended that the appeal made by Syed Ahmad Bukhari was given wide publicity by the media, which influenced the Muslim voters to vote in favour of the respondent due to which the respondent won the election. The petitioner contended that the appeal by Syed Ahmad Bukhari to vote on religious lines is a corrupt practice and, therefore, the election of the respondent is void under Section 100(1)(b) of the Act. The petitioner, therefore, prayed that the election of Smt. Sonia Gandhi from 36 Rae Bareli Lok Sabha Constituency be declared void and her election be set aside. The petitioner has also prayed that Section 5(1)(c) of the Citizenship Act be declared unconstitutional and void.
The respondent has filed her written statement. Shorn of details, the respondent contended that the election petition is totally false, frivolous, malicious and is liable to be dismissed. The respondent was duly granted citizenship of India and that she has renounced her citizenship of her native country Italy. The respondent has denied that she continues to be a citizen of Italy. The respondent further contended that she is a citizen of India for the purposes of Article 84(a) and 326 of the Constitution of India. Further, the issue of her citizenship has been decided by the High Court in Election Petition No.1 of 2009 (Rakesh Singh Vs. Sonia Gandhi) vide judgment dated 14th February, 2011, which has attained finality and that the same issue cannot be raised again and is consequently, barred by the principle of res judicata. The respondent further denied that she indulged in corrupt practice on the ground of religion. The respondent contended that she had not given her consent to Syed Ahmad Bukhari on 4th April, 2014 to make an appeal on religious grounds. The respondent contended that she has been validly elected as a Member of Parliament.
The respondent has filed an application under Order 7, Rule 11(a) of the Code of Civil Procedure for the dismissal of the petition on the ground of lack of cause of action as well as under Section 86(1) of the Act for non-compliance of Section 81(1) and 81(3) of the Act. The respondent contended that the grounds raised in the election petition are vexatious and frivolous and is otherwise an abuse of the process of the Court. The respondent contended that even if the allegations made in the petition are taken into consideration in entirety, the petition is liable to be dismissed as it does not disclose any cause of action. The respondent contended that only vague and general allegations have been made which does not disclose any material fact nor any triable issue arises for consideration. The respondent contended that there is lack of "facta probanda" and, therefore, there is lack of cause of action. The assertions made in the petiition is the personal opinion of the petitioner based on misinterpretation of law. Such assertion, based on personal opinion, and which does not contain any material fact are irrelevant, unnecessary and frivolous and is also an abuse of the process of law. The respondent contended that no cause of action has arisen for adjudication and thus the petition should be dismissed.
The respondent has also filed an application under Order 6, Rule 16 of the Code of Civil Procedure contending that imaginary and false insinuation has been levelled against the respondent without giving any details thereof. The respondent contended that paras 6 to 68 of the election petition has been verified by the petitioner on the basis of personal knowledge and information received but the petitioner has not disclosed the source from where the information or knowledge has been gathered. The respondent thus urged that on this ground itself the petition was liable to be dismissed at the threshold itself. The respondent contended that a newspaper report or television news cannot be a source of information for trial in an election petition and since the verification clause is contrary to the provisions of Order 6, Rule 16 of the Code of Civil Procedure, such pleading cannot amount to disclosure of any cause of action and, therefore, paras 6 to 68 of the petition should be struck off from the pleadings of the election petition.
The petitioner has contested the applications under Order 7, Rule 11(a) and under Order 6, Rule 16 of the Code of Civil Procedure contending that the applications are misconceived and without any foundation. The petitioner contended that on the basis of the pleadings made in the petition, a cause of action was made out and that the election petition deserves a full trial. The petitioner further contended that the verification of the paragraphs of the election petition are in consonance with the provisions of Order 6, Rule 15 of the Code of Civil Procedure.
In this backdrop, I have heard Sri Hari Shankar Jain, Sri Subash Vidyarthi, Ms. Ranjana Agnihotri and Ms. Sudha Sharma, the learned counsels for the petitioner and Sri P.P. Rao, the learned Senior Counsel, Sri Umesh Narain Sharma, the learned Senior Counsel assisted by Sri K.C. Mittal, Sri Ravi Shankar Prasad, Ms. Maha Lakshmi Pavani, the learned counsel for respondent no.1.
By virtue of Section 87 of the Act, the provisions of the Code of Civil Procedure applies to the trial of an election petition and consequently, the Court trying an election petition can exercise the provisions of the Code of Civil Procedure, including Order 6, Rule 16 and/or Order 7, Rule 11. For facility the provisions of Section 87 of the Act, Order 6, Rule 16 and Order 7, Rule 11(a) of the Code of Civil Procedure are extracted hereunder:
"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 tried 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 suits:
Provided that the High Court shall have the 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 of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1972), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.]"
"Order 6, Rule 16: Striking out pleadings.- - The Court may at any stage of the proceedings order to be struck out 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) which is otherwise an abuse of the process of the Court."
"Order 7, Rule 11. Rejection of Plaint - The plaint shall be rejected in the following case:-
(a) Where it does not disclose a cause of action."
Under Section 87 of the Act, every election petition shall be tried by the High Court in accordance with the procedure applicable under the Code of Civil Procedure. Section 83 of the Act provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies. For facility, the provisions of Section 83 of the Act is extracted hereunder:
"83. Contents of petition .--(1) An election petition--
(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 parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil 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.]"
Consequently, from a conjoint reading of Section 83 read with Order 7, Rule 11(a), if material facts have not been pleaded in the petition, appropriate orders can be passed in exercise of the powers given to the Court under the Code of Civil Procedure.
In Samant N. Balakrishna Vs. George Fernandez, (1969) 3 SCC 238, the Supreme Court held that an omission of a single material fact would lead to an incomplete cause of action and that an election petition would consequently fail. The Court held:
"The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point of 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.
Similarly, in Udhav Singh Vs. Madhav Rao Sindhia, 1977 (1) SCC 511, the Supreme Court held that all primary facts, which are required to be proved by a party to establish a cause of action are material facts. Thus, in an election petition, it is essential or rather mandatory to plead the material facts. Failure to plead even a single material fact would lead to the dismissal of the petition.
In T. Arivandandam Vs. T.V. Satyapal and another, 1977 (4) SCC 467, the Supreme Court held:-
"...... that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has creating the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage...."
In Azhar Hussain Vs. Rajiv Gandhi, 1986 (Supp.) SCC 315, the Supreme Court after reviewing the case laws under Order 7, Rule 11 of the Code of Civil Procedure held that a suit which does not furnish a cause of action can be dismissed under Order 7, Rule 11 of the Code of Civil Procedure. The Supreme Court held that the omission of a single material fact amounts to an incomplete cause of action and can lead to the rejection of the election petition. The Supreme Court held that all the 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 a disobedience of the mandate provided under Section 83(1(a) of the Act.
The Supreme Court, after considering the numerous decisions of the Court, restated the settled position on the question as to what exactly the expression "material facts and particulars" means which the election petitioner was required to incorporate in his petition by virtue of Section 83(1) of the Act, namely:
"(1) What are material facts and particulars ? 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 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. Manubhai Nandlal Amarsey v. Popatlal Manilal Joshi & Ors., [1969] 3 S.C.R. 217. (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 must therefore be pleaded. Hardwari Lal v. Kanwal Singh, [1972] 2 S.C.R. 742:
a) mode of assistance;
b)measure of assistance; and
c) all various 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 servants in election it is absolutely essential to plead the following :
a) kind or form of assistance obtained or procured;
b) in what manner the assistance was obtained or procured or attempted to be obtained or procured by the election-candidate for promoting the prospects of his election Hardwari Lal v. Kanwal Singh. (supra) (4) The returned candidate must be told as to what assistance he was supposed to have sought, the type of assistance, the manner of assistance, the time of assistance, the persons from whom the actual and specific assistance was procured Hardwari Lal v. Kanwal Singh (supra) (5) There must also be a statement in the election petition describing the manner in which the prospects of the election was furthered and the way in which the assistance was rendered. Hardwari Lal v. Kanwal Singh (supra).
(6) The election petitioner must state with 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 Hardwari Lal v. Kanwal Singh (supra).
The distinction between "material facts" and "particulars" and the requirement in election petition was again explained by the Supreme Court in Virender Nath Gautam Vs. Satpal Singh, 2007 (3) SCC 617, wherein the Supreme Court held:
"There is distinction between facta probanda (the facts required to be proved, i.e. material facts) and facta probantia (the facts by means of which they are proved, i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue."
In Ram Sukh Vs. Dinesh Aggarwal, 2009 (10) SCC 541, the Supreme Court held that:-
"Undoubtedly, by virtue of Section 87 of the Act, the provisions of the Code apply to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the court trying an election petition can act in exercise of its power under the Code, including Order VI Rule 16 and Order VII Rule 11 of the Code. The object of both the provisions is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the courts......"
In I.T.C. Ltd. Vs. Debts Recovery Appellate Tribunal, 1998 (2) SCC 70 the Supreme Court held:
"The basic question to be decided while dealing with an application filed under Order 7, Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code."
In Sopan Sukhdeo Sable and others Vs. Assistant. Charity Commissioner and others, 2004 (3) SCC 137, the Supreme Court held that:
"... The real object of Order 7, Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by a searching examination of the party, in case the court is prima facie of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised."
And again held:
"Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used, clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant."
In Liverpool and London S.P. & I Association Ltd. Vs. M.V. Sea Success I and another, 2004 (9) SCC 512, the Supreme Court held:
"The idea underlying Order 7 Rule 11A is that when no cause of action is disclosed, the courts will not unnecessarily protract the hearing of a suit. Having regard to the changes in the legislative policy as adumbrated by the amendments carried out in the Code of Civil Procedure, the Courts would interpret the provisions in such a manner so as to save expenses, achieve expedition, avoid the court's resources being used up on cases which will serve no useful purpose. A litigation which in the opinion of the court is doomed to fail would not further be allowed to be used as a device to harass a litigant."
In view of the settled position of law with regard to the expression "material facts", it becomes essential to consider the grounds on which the election of the returned candidate is being assailed.
To recapitulate, the election of respondent no.1 has been challenged on the following grounds:
(1) That respondent no.1 is not a citizen of India and, therefore, was not qualified to be chosen to fill the seat in the Lok Sabha and, consequently, her nomination paper could not be accepted by the Returning Officer.
(2) Section 5(1)(c) of the Citizenship Act, 1955 read with Rule 4 of the Citizenship Rules, 1956 along with Form 2 of the Rules is unconstitutional and void and, (3) Respondent no.1 committed corrupt practice by appealing to vote on the ground of religion.
Based on the aforesaid grounds, the petitioner has prayed that the election of respondent no.1 be set aside and further declare Section 5(1)(c) of Citizenship Act and the Rules made thereunder as unconstitutional.
Sri P.P. Rao, the learned Senior Counsel for respondent no.1 contended that with regard to the challenge that respondent no.1 is not a citizen of India, necessary assertion has been made in paragraphs 8 to 54 of the election petition. It was contended that the averments made in these paragraphs are substantially the same, if not verbatim as made by one Hari Shankar Jain in his election petition questioning the election of respondent no.1 when she was elected to the 13th Lok Sabha from Amethi parliament constituency in 1999, which election petition was dismissed under Order 7, Rule 11 of the Code of Civil Procedure for non-disclosure of cause of action by the Allahabad High Court. The said decision was affirmed by the Supreme Court in Hari Shankar Jain Vs. Sonia Gandhi, 2001 (8) SCC 233. It was contended that in view of the aforesaid, the present election petition being based on the same set of facts should be dismissed under Order 7, Rule 11 of the Code of Civil Procedure on the ground of non-disclosure of cause of action.
The learned Senior Counsel contended that respondent no.1 was again elected in the Lok Sabha election in the year 2009. Election petition was filed by one Rakesh Singh challenging the election of respondent no.1. The ground of challenge was that respondent no.1 was not a citizen of India. The said petition was dismissed wherein the Court held that so long as the certificate granted to respondent no.1 under Section 5(1)(c) of the Citizenship Act was not cancelled or withdrawn, the said respondent no.1 would continue to remain a citizen of India. It was asserted that the said judgment is a judgment "in rem" upholding the status of respondent no.1 as a citizen of India under the Citizenship Act. It was urged that in any case, the declaration of law being delivered by the High Court is a binding precedent and would apply to the present facts.
On the issue of vires of the Citizenship Act, the learned Senior Counsel contended that the vires of an Act can be considered in an election petition but contended that the vires of an Act cannot be tried in an election petition on the basis of vague and indefinite pleas raised in the election petition. Further, the cause of action for challenging the vires of the Act could only arise when the order of citizenship dated 30th April, 1983 was challenged. The learned Senior Counsel contended that the order of citizenship dated 30th April, 1983 has not been challenged and, therefore, the Court should decline to answer an academic question.
On this issue, the learned counsel for the petitioner Sri H.S. Jain contended that the question raised has not been decided by the High Court in the earlier two election petitions and, in any case, the decisions given therein does not operate as res judicata. It was urged that the earlier decisions given under Order 7, Rule 11 of the Code of Civil Procedure does not bar the petitioner from filing the present election petition. In any case, the earlier decisions was not a decision "in rem". The petitioner contended that the election petitioner raises triable issues, which has to be decided on merits and, therefore, the application under Order 7, Rule 11 of the Code of Civil Procedure should be dismissed.
The learned counsel has drawn a distinction between "citizen of India" and being "an Indian citizen". The learned counsel for the petitioner urged that in Part II of the Constitution of India while dealing with citizenship, Articles 5 to 10 of the Constitution uses the expression "citizen of India". Article 11, which empowers Parliament to make law with respect to the acquisition and termination of citizenship speaks of "citizenship" only and not of citizenship of India. It was therefore, urged that Parliament cannot therefore, make any law conferring status of "citizen of India" on anyone and if it does so, the parliamentary enactment would be ultra vires the Constitution. The learned counsel for the petitioner contended that under the Constitution persons have been categorized as persons, citizens and citizens of India. The learned counsel contended that the rights and privileges conferred on citizens of India are not available to Indian citizens and asserted that the provisions of the Citizenship Act, 1955, which confers the status of citizen of India as distinguished from Indian citizen on a person other than the one in whom the citizenship vests by right, i.e. by birth or by descent are ultra vires the Constitution. The learned counsel contended that the right to contest an election is conferred only on a citizen of India as defined in Part II of the Constitution. Respondent no.1 could not and is not a "citizen of India". It was urged that respondent no.1 could not have cleared the status and qualify as a "citizen of India" solely by virtue of registration under Section 5 of the Citizenship Act, 1955.
In order to appreciate the submission of the learned counsel for the parties on this aspect, it would be essential to consider Article 11 of the Constitution, which for facility is extracted hereunder:-
"11. Parliament to regulate the right of citizenship by law. - Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matter relating to citizenship."
To achieve the aforesaid object, parliament enacted the Citizenship Act, 1955. For facility, Section 5(1)(c), Section 9 and Section 10 are extracted hereunder as it will have a bearing to the case:-
"5. Citizenship by registration. - (1) Subject to the provisions of this section and such other conditions and restrictions as may be prescribed, the Central Government may, on an application made in this behalf, register as a citizen of India any person not being an illegal migrant who is not already such citizen by virtue of the Constitution or of any other provision of this Act if he belongs to any of the following categories, namely: -
(a) --------
(b) -------
(c) A person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration.
9. Termination of citizenship. - (1) Any citizen of India who by naturalisation, registration otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India.
Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires, the citizenship of another country, until the Central Government otherwise directs.
(2) If any question arises as to whether, when or how any citizen of India has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.
10. Deprivation of citizenship. - (1) A citizen of India who is such by naturalisation or by virtue only of clause (c) of article 5 of the Constitution or by registration otherwise than under clause (b)(ii) of article 6 of the Constitution or clause (a) of sub-section (1) of section 5 of this Act, shall cease to be a citizen of India, if he is deprived of that citizenship by an order of the Central Government under this section.
(2) Subject to the provisions of this section, the Central Government may, by order, deprive any such citizen of Indian citizenship, if it is satisfied that -
(a) the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact; or
(b) that citizen has shown himself by act or speech to be disloyal or disaffected towards the Constitution of India as by law established; or
(c) that citizen has, during any war in which India may be engaged unlawfully traded or communicated with an enemy or been engaged in, or associated with, any business that was to his knowledge carried on in such manner as to assist an enemy in that war; or
(d) that citizen has, within five years after registration or naturalisation, been sentenced in any country to imprisonment for a term of not less than two years; or
(e) that citizen has been ordinarily resident out of India for a continuous period of seven years, and during that period, has neither been at any time a student of any educational institution in a country outside India or in the service of a Government in India or of an international organisation of which India is a member, nor registered annually in the prescribed manner at an Indian consulate his intention to retain his citizenship of India."
The Citizenship Act, 1955 is an Act to provide for the acquisition and determination of Indian citizenship. Acquisition of citizenship can be by birth (Section 3), by descent (Section 4), by registration (Section 5) and by naturalisation (Section 6). Clause (c) of sub-section (1) of Section 5, as amended by Act 6 of 2004, provides that a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration, may, subject to satisfying other provisions including procedural ones, be registered as a citizen of India by the prescribed authority of the Central Government. The Citizenship Act does not provide for cancellation of a certificate of registration issued under Section 5. Section 9 speak of termination of citizenship upon acquisition of the citizenship of another country which event entails cessation of citizenship of India. Sub-section (2) of Section 9 provides that if any question arises as to where, when and how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence as may be prescribed in this behalf. Section 10 of the Citizenship Act provides for deprivation of citizenship by an order of the Central Government passed under sub-Section (2) of Section 10 of the Citizenship Act.
The Court find that the assertions contained in paragraph 8 to 54 of the petition is substantially the same, if not verbatim to the averments made in the election petition filed earlier by Hari Shankar Jain. A copy of the election petition of Hari Shankar Jain has been placed on record. The Court has perused the pleadings in the said election petition. A comparative table was was placed before the Court showing the averments in the present election petition and the corresponding averments made in the earlier election petition filed by Sri Hari Shankar Jain and one finds that the pleadings are substantially the same, if not verbatim. The election petition of Hari Shankar Jain was dismissed under Order 7, Rule 11 of the Code of Civil Procedure for non-disclosure of cause of action. The Supreme Court affirmed the decision of the High Court reported in 2001 (8) SCC 233 holding:-
".......it would suffice to say that we have carefully read each of the two election petitions and heard each of the two election-petitioners (appellants) in very many details specially on the aspect of the election petitions suffering from the vice of not satisfying the mandatory requirement of pleading material facts as required by Section 82(1)(a) of RPA 1951 and we are satisfied that the two election petitions do not satisfy the requirement statutorily enacted and judicially explained in umpteen number of decisions. The petitions are hopelessly vague and completely bald in the allegations made, most of which could not possibly be within the personal knowledge of the petitioners but still verified as true to their knowledge, without indicating the source. Such pleadings cannot amount to disclosing any cause of action and are required to be rejected/dismissed under Order VII Rule 11 IPC."
In the opinion of the Court, the said decision of the Supreme Court in Hari Shankar Jain's case (supra) is squarely applicable.
The Court also finds that in another election petition against respondent no.1 filed by Rakesh Singh questioning the election on the same ground that the said respondent was not a citizen of India, the High Court held:-
"In the instant case, it is crystal clear that by virtue of the certificate granted to her under Section 5(1)(c) of the Citizenship Act, which has never been cancelled, withdrawn or annulled till date, the respondent No.1 is "a citizen of India". The present petition is filed nearly three decades after the grant of citizenship to the respondent. The citizenship certificate was issued on 30th April, 1983 in the name of Sonia Gandhi alias Antonio Maino (copy on record). At no point of time, the petitioner did even challenge the inclusion of her name in the Electoral Roll. Making vague and bald allegations, without giving any material facts, show that proper care was not taken before filing the petition by gathering and stating all material facts. The challenge laid to the validity of election on the basis of the marriage certificate as well as certificate by registration of the respondent no. 1 not only suffers from deficiency in pleadings but is also scandalous."
The learned Senior Counsel thus urged that the aforesaid two decisions is a judgment "in rem" upholding the status of the respondent as a citizen of India under the citizenship Act. In this regard, one finds that the Supreme Court in C.M. Arumugam Vs. S. Rajgopal, 1976 (1) SCC 863 held:
"that every election furnishes a fresh cause of action for a challenge to that election and an adjudication in a prior election petition cannot be conclusive in the subsequent proceeding. Res judicata is nothing but the merger of a cause of action in a decree, transit in rem judicatum. So, even if the cause of action in the earlier election petition merged in the final adjudication therein, since according to this Court, the subsequent election furnishes a fresh cause of action, the merger of the earlier cause of action with the decision therein cannot bar the trial of the fresh cause of action arising out of subsequent election. It is true that the earlier election petition was filed by a voter in the constituency concerned and he had also raised the plea that the appellant did not belong to the "Konda Dora" community. An election petition filed, though it abates on the death of the petitioner therein, could be pursued by another person coming forward to prosecute that election petition as enjoined by Section 12 of the Act. But that does not make an election petition a representative action in the sense in which it is understood in law. Therefore, normally, the adjudication in an election petition, not inter-parties, cannot operate as res judicata in a subsequent election petition challenging that subsequent election."
In Satrucharla Vijaya Rama Raju Vs. Nimmaka Jaya Raju and others, 2006 (1) SCC 212 the Supreme Court held that an election petition under Section 80 of the Representation of People Act, 1951 cannot be held to lead to an adjudication which declares or determines the status of a person. The Supreme Court held that the election petition was merely an adjudication of a statutory challenge on the question whether the election of the successful candidate was liable to be voided on any of the grounds available under Section 100 of the Representation of People Act, 1951. The Supreme Court further held that if the election petitioner fails to establish his claim, it could not be said that it amounted to a declaration of the status of the respondent in that election petition or that such finding would operate as a judgment "in rem".
In the light of the aforesaid, the contention of the learned Senior Counsel for the respondent that the decision of the Court in the earlier election petition filed against the respondent no.1 would operate as a judgment "in rem" cannot be accepted.
However, the Court is of the opinion that the decisions of the Court, even though it is not inter parties, has a high evidentiary value while considering the case of the parties in the present election petition. The High Court, dismissed the election petition in Hari Shankar Jain's case (supra) and again in Rakesh Singh's case (supra) under Order 7, Rule 11 of the Code of Civil Procedure on the finding that material facts have not been incorporated in the election petition. The Supreme Court affirmed the decision of the High Court in Hari Shankar Jain's case (supra) holding that bald and vague averments have been made in the election petition, which does not satisfy the requirement of pleading material facts. This Court has found that the pleadings in this petition is virtually the same as pleaded in the election petition of Hari Shankar Jain. The Court is of the opinion that the present petition must meet the same fate.
The distinction drawn by the learned counsel for the petitioner between "citizen of India" and being "an Indian citizen" and thus contending that a person acquiring Indian citizenship will not come within the ambit of the phrase "citizen of India" enumerated in Article 84(a) of the Constitution of India should be considered in the present election petition as the same was not decided by the Supreme Court in Hari Shankar Jain's case (supra) on the ground of lack of pleadings in that election petition is misconceived. The contention that sufficient pleadings have been made in this regard, in the present election petition, which requires the interpretation of the word "of" occurring in Article 84(a) of the Constitution by the Court cannot be accepted and must fail. The Court is of the opinion that since the petitioner himself admitted that the respondent was granted Indian citizenship on 30th April, 1983, coupled with the fact that there is no challenge by the petitioner in the acquisition of the citizenship upon the respondent, such plea cannot be looked into at this belated stage after three decades.
There is another aspect of the matter which is also relevant. Hari Shankar Jain is an Advocate who contested the 1999 election and lost. He filed the election petition raising various pleas. His election petition was rejected under Order 7, Rule 11 of the Code of Civil Procedure and was also affirmed by the Supreme Court. Same plea has again been taken in the present election petition. The petitioner has also tried to cover the lacuna which was found in the petition of Hari Shankar Jain. The plea relating to the interpretation of Article 84(a) of the Constitution has been made in paragraphs no.13, 14, 15, 28, 29, 31, 34, 43, 44 and 45 of the election petition. Such assertions made in the aforesaid paragraphs have been sworn on legal advice. Can such a petition be entertained and the question be answered on pleas which are solely based on legal advice ? What is the source of such legal advice which the petitioner professes it to be true? The source has not been shown nor asserted. Such bald assertion, without indicating the source of knowledge cannot amount to disclosure of any cause of action and the same is required to be dismissed under Order 7, Rule 11 of the Code of Civil Procedure.
At this stage, the Court must observe that Hari Shankar Jain is the Advocate for the present election petitioner. The Court gets the uncanny feeling that the lacunas observed by the Supreme Court in the election petition of Hari Shankar Jain has been incorporated by the counsel in the present election petition, which cannot be permitted. Personal knowledge of the counsel cannot be imported and made a ground of attack in an election petition making it as if it was the personal belief of the election petitioner. The Court is further of the opinion that a ground taken in an election petition which has been negated by the Court on an earlier occasion cannot be improved upon in an another election petition, nor such addition would satisfy the requirements of pleading material facts within the meaning of Section 83(1)(a) of the Representation of People Act, 1951 read with Order 7, Rule 11 of the Code of Civil Procedure.
The vires of Section 5(1)(c) of the Citizenship Act can be looked into for the purpose of trying an election petition on any one or more of the grounds enumerated in Section 100 of the Act and for the purpose of granting any one or more reliefs mentioned under Section 98 and 99 of the said Act. At the same time, the vires of a provision of an Act on its own cannot be challenged unless the grant of certificate under the said provision is also questioned. Since the certificate of registration granted under Section 5(1)(c) of the Act has not been challenged, the Court is not inclined to answer hypothetical or academic questions testing the validity or vires of any law in an election petition. The Court gets support from a decision of the Supreme Court in Sanjeev Coke Manufacturing Company Vs. Bharat Coking Coal Ltd. and another, 1983 (1) SCC 147 where in the Supreme Court held held:-
"... We have serious reservations on the question whether it is open to a court to answer academic or hypothetical questions on such considerations, particularly so when serious constitutional issues are involved. We (Judges) are not authorised to make disembodied pronouncements on serious and cloudy issues of constitutional policy without battle lines being properly drawn. Judicial pronouncements cannot be immaculate legal conceptions. It is but right that no important point of law should be decided without a proper lis between parties properly ranged on either side and a crossing of the swords. We think it is inexpedient for the Supreme Court to delve into problems which do not arise and express opinion thereon."
Considering the aforesaid, the Court is of the opinion that the cause of action for challenging the validity or vires of an Act could only arise when the order of citizenship dated 30th April, 1983 is challenged. The Central Government issued an order on 30th April, 1983 registering respondent no.1 as a citizen of India under Section 5(1)(c) of the Citizenship Act. Such registration is still continuing and has not been cancelled, withdrawn or annulled till date. So long as the order issued under Section 5(1)(c) of the Citizenship Act stands, respondent no.1 continues to remain a citizen of India.
The petitioner admits that respondent no.1 has been registered as a citizen of India. It therefore, follows that once the respondent is held to be citizen of India, this Court on its own cannot hold an inquiry on the question of citizenship of a candidate unless the order granting citizenship to the respondent is challenged or there is a declaration issued from the Central Government under Section 9 of the Citizenship Act with regard to the loss of citizenship or under Section 10 of the Act with regard to deprivation of the citizenship. In the instant case, the grant of citizenship by Central Government to respondent no.1 under Section 5(1)(c) of the Citizenship Act has not been questioned. Further, there is no order of the Central Government under Section 9 or 10 of the Citizenship Act terminating the citizenship of respondent no.1. The Supreme Court in Bhagwati Prasad Dixit Ghorewala Vs. Rajeev Ghandi, 1986 Law Suit (SC) 143 held that Section 9 of the Citizenship Act is a complete code as regard the termination of Indian citizenship. Sub-clause (d) of clause (1) of Article 102 of the Constitution provides that a person shall be disqualified for being chosen as, and for being, a member of either house of the parliament if he is not a citizen of India. The Supreme Court held that the policy under Section 9 of the Citizenship Act appears to be that the right of citizenship of the person, who is admittedly an Indian citizen should not be exposed to attack in all forums in the country but should be decided by one authority in accordance with the prescribed rules and that every other court or authority would have to act only on the basis of the decision of the prescribed authority in that behalf and on no other basis. That being the mandate of the law, the Supreme Court held:-
"even the High Court trying an election petition can declare an Indian citizen as having acquired the citizenship of a foreign State only on the basis of a declaration made by the Central Government. If such a declaration made by the Central Government is produced before a High Court trying an election petition the High Court has to give effect to it. If such a declaration is not forthcoming, the High Court should proceed on the ground that the candidate concerned has not ceased to be an Indian citizen. It cannot independently hold an enquiry into that question on its own."
In State of Madhya Pradesh Vs. Peer Mohd., AIR 1963 SC 645 the Supreme Court held:
"If a dispute arises as to whether an Indian citizen has acquired the citizenship of another country, it has to be determined by such authority and in such manner and having regard to such rules of evidence as may be prescribed in that behalf. That is the effect of Section 9(2). It may be added that the rules prescribed in that behalf have made the Central Government or its delegate the appropriate authority to deal with the question and that means this particular question cannot be tried in Courts."
The petitioner is basically challenging the correctness of the grant of citizenship to respondent no.1 and her entitlement to be a registered as a itizen of India under Section 5(1)(c). Such question can only be considered and adjudicated upon provided the said grant is challenged before the Court. In the instant case, the order of the Central Government granting citizenship to respondent no.1 has not been challenged. So long as the certificate of citizenship issued under Section 5 is not challenged the presumption of the validity of the certificate continues to remain in existence in view of Section 114 of the Evidence Act. The Court will presume that the certificate was validly issued by the prescribed authority after satisfying itself that the said respondent no.1 was entitled for grant of registration in her favour. The presumption of a valid registration certificate would continue to exist so long it is not challenged.
In the light of the aforesaid, the Court finds that the declaration made by the Central Government under Section 5(1)(c) of the Citizenship Act in favour of respondent no.1 has not been challenged in this election petition and, consequently, the Court is not inclined to delve into the vires of the Citizenship Act and the Rules framed therein and answer academic questions.
The petitioner has made a feeble attempt that respondent no.1 could not become a citizen of India as she has not renounced the citizenship of her native country Italy till date. The petitioner asserted that respondent no.1 continues to be a citizen of Italy. Necessary assertion has been made in paragraph 11, 48, 49, 50 of the petition to this effect. In paragraph 51 of the petition, the petitioner has quoted Article 22 of the Constitution of Republic of Italy, which provides that "no one may be deprived of his legal status, his citizenship, or his name for political reasons".
In the light of these assertions, it was contended that in view of the laws of Italy, respondent no.1 could not renounce the Italian citizenship and become a citizen of India nor could she apply for a certificate of citizenship under Section 5(1)(c) of the Citizenship Act. The Court has perused the averments and the assertion made by the learned counsel on this aspect and is of the opinion that the assertions are bald allegations made without any basis and do not amount to pleading of material facts, which may warrant any inquiry into these allegations.
The Court finds that paragraph 11 and 48 are based on personal knowledge, whereas paragraph 49, 50 and 51 are based on legal advice. The very tenor of the pleadings discloses that the petitioner had no personal knowledge of various facts relating to respondent no.1 on this issue. The very fact that the pleadings have been verified on legal advice is a clear indication of the lack of knowledge of the petitioner on this aspect. All assertions have been made about Italian law without stating what is the source of such law. The basis for raising such pleadings have not been indicated. The assertions verified as true to my knowledge and based on legal advice is wholly unacceptable. Such assertions does not amount to disclosure of material facts. The pleading on this issue is apparently vague, lacks material facts and, therefore, must fail.
The petitioner contends that respondent No.1 has committed corrupt practice by making an appeal to vote on the ground of religion. Necessary allegations have been made in paragraphs 55 to 68 of the petition, details of which have already been narrated hereinabove. To recapitulate, the petitioner contends that as per television news channel broadcast dated 1.4.2014 a meeting took place between the respondent No.1 and Syed Ahmed Bukhari, Shahi Imam of Jama Masjid, New Delhi, wherein Syed Ahmed Bukhari claimed that respondent No.1 had requested him to endeavour and ensure that Muslim votes should not split in the upcoming Lok Sabha election. The petitioner further contended that, as per television news channel report dated 4.5.2014, Syed Ahmed Bukhari in a press conference declared his support to the Congress Party on the basis of the meeting held with respondent No.1 on 1.4.2014.
The learned Senior counsel for the respondent contended that necessary ingredients of "corrupt practice" as specified in Section 123(3) of the Act are lacking. Further, necessary material is also lacking and has not been specified, which is a mandatory requirement under Section 83 of the Act and, therefore, no cause of action arises for consideration. It was urged that as per Section 123 (3) of the Act, there are three ingredients which should be present before an assertion could be made that the respondent had indulged in corrupt practice, namely, that the respondent should be a candidate, the appeal should made in her religion and that the respondent authorized Syed Ahmed Bukhari to make an appeal to vote for her in the name of her religion. The learned Senior counsel contended that no such assertion has been made specifically in any of the paragraphs 55 to 68 of the petition. The learned senior counsel further contended that the appeal, if any, made by the respondent No.1 should be with regard to "her" religion, which in the instant case is missing. There is no such assertion in the election petition that the appeal made by respondent No.1 to Shahi Imam was in the name of "her" religion.
On the other hand, the learned counsel for the petitioner contended that the appeal made by Syed Ahmed Bukhari on 4.4.2014, as per the television news channel reports declaring his support to the Congress party, was by itself sufficient to implicate respondent No.1 of having indulged in corrupt practice. The learned counsel further contended that on the question, whether the appeal to vote on the ground of religion, whether it is the religion of the candidate or the religion of the person professing to appeal on behalf of the candidate, has been referred to a larger Bench and, therefore, contended that the a triable case was made out and the petition should, therefore, be decided on merit rather than throwing out the election petition on the ground that no cause of action arises.
Having heard the learned counsel for the parties on this issue, the Court finds that Section 123(3) of the Act deals with ''corrupt practice" on the ground of religion. For facility, Section 123(3) of the Act is extracted here under:
"(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:"
From a perusal of the aforesaid, the appeal to vote on the ground of "his" religion is important. Further, the appeal, if any, has to be made by a "candidate". In this regard, Section 79(b) of the Act defines "candidate" as under:-
"(b) "candidate" means a person who has been or claims to have been duly nominated as a candidate at any election"
The aforesaid definition makes it clear that a candidate is that person who has been nominated as a candidate at any election. The petitioner admits in paragraph 7 of the election petition that respondent No.1 filed her nomination papers on 2.4.2014. It, therefore, becomes clear that respondent No.1 became a candidate for the Lok Sabha election only on 2.4.2014. Prior to 2.4.2014 respondent No.1 was not a candidate for the election to any seat of the Lok Sabha.
In Kona Prabhakara Rao Vs. N. Sheshagiri Rao and another, 1982(1)SCC 442, allegations of corrupt practice was made to the effect that the candidate sought assistance from the Tahsildar in furthering his election prospects and in helping him to win the election. The Supreme Court held that there was absolutely no allegation in the pleadings to show that any time after having filed his nomination paper, the candidate made any effort to seek the assistance of the Tahsildar in helping him to win the election and, consequently, held that the election petitioner failed to prove the allegations of corrupt practice. Similarly in Mohan Rawale Vs. Damodar Tatyaba alias Dadasaheb and others, 1994 (2) SCC 392, the Supreme Court held that the averments made in the election petition with regard to corrupt practice referring to the period prior to the candidate being nominated as a candidate for election could not amount to corrupt practice.
In the light of the aforesaid decisions, the Court finds that the assertions made by the petitioner revolves on the fact that respondent No.1 met Syed Ahmad Bukhari on 1.4.2015 and appealed to him to vote on the ground of religion. Such assertion cannot amount to corrupt practice, as per Section 123(3) of the Act, inasmuch as, respondent No.1 was not a candidate on 1.4.2014, as per Section 79(b) of the Act. The allegations made in the election petition could not amount to corrupt practice.
Section 123(3) of the Act further specifies that the appeal by a candidate must be to vote on the ground of "his" religion. This assertion has to be specifically asserted in the petition as per the provision of Section 83(1) of the Act, namely, that the material facts must be asserted in the election petition. The Court has perused the averments made in paragraphs 55 to 68 and finds that there is no specific assertion by the petitioner to the effect that the respondent appealed to Shahi Imam, Syed Ahmad Bukhari to vote on the ground of "her" religion. In paragraph 55 the petitioner contends that the returned candidate has committed corrupt practice, namely, "an appeal to vote on the ground of religion". This statement by itself is vague and insufficient. The petitioner has nowhere specified as to whose religion was the returned candidate professing, namely, whether it was the religion of the returned candidate or whether it was the religion of Syed Ahmad Bukhari. Paragraph 55 further makes it clear that Syed Ahmad Bukhari made an appeal to the Muslim voters to vote in favour of the returned candidate and in favour of her party, namely, the Indian National Congress. Thus, there is no assertion of appeal to vote in the name of the religion of respondent no.1.
In Dr. Ramesh Yeshwant Prabhoo Vs. Prabhakar Kashinath Kunte and others 1996 (1) SCC 130, the Supreme Court held that the word "his" as specified in sub-section (3) of Section 123 of the Act is of importance and it means that the religion forming the basis of appeal to vote or refrain from voting for any person must be of that candidate for whom the appeal to vote or refrain from voting is made. The Supreme Court held-
"There can be no doubt that the word 'his' used in sub-section (3) must have significance and it cannot be ignored or equated with the word 'any' to bring within the net of sub-section (3) any appeal in which there is any reference to religion. The religion forming the basis of the appeal to vote or refrain from voting for any person, must be of that candidate for whom the appeal to vote or refrain from voting is made. This is clear from the plain language of sub-section (3) and this is the only manner in which the word 'his' used therein can be construed. The expressions "the appeal ... to vote or refrain from voting for any person on the ground of his religion, ... for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate" lead clearly to this conclusion. When the appeal is to vote on the ground of 'his' religion for the furtherance of the prospects of the election of that candidate, that appeal is made on the basis of the religion of the candidate for whom votes are solicited. On the other hand when the appeal is to refrain from voting for any person on the ground of 'his' religion for prejudicially affecting the election of any candidate, that appeal is based on the religion of the candidate whose election is sought to be prejudicial affected. It is thus clear that for soliciting votes for a candidate, the appeal prohibited is that which is made on the ground of religion of the candidate for whom the votes are sought; and when the appeal is to refrain from voting for any candidate, the prohibition is against an appeal on the ground of the religion of that other candidate. The first is a positive appeal and the second a negative appeal. There is no ambiguity in sub-section (3) and it clearly indicates the particular religion on the basis of which an appeal to vote or refrain from voting for any person is prohibited under sub-section (3)."
In Harmohinder Singh Pradhan Vs. Ranjeet Singh Talwandi and others 2005 (5) SCC 46, the Supreme Court held:
"12. In the case before us, the election petition nowhere mentions the religion of Respondent No1. There is no averment made in the election petition that the said appeal was made in the name of the religion of Respondent 1. It is not the case of the appellant in his election petition that there was any negative appeal made at any time by Respondent 1 or on his behalf, that is to say, an appeal to voters to refrain from voting for the appellant on the ground of his religion.
13. There is yet another reason why the averments made in the election petition are deficient. The appeals are said to have been made by certain religious leaders. A distinction has to be drawn between an appeal simpliciter to vote or to refrain from voting made by religious leaders which may benefit any particular candidate and an appeal to vote or to refrain from voting on the ground of religion emanating from religious leaders and attributable to the candidate within the meaning of Section 123(3). The former is not vulnerable while the latter is. All that the election petition alleges is that certain religious leaders, held in reverence by the voters, issued an appeal to vote in favour of Respondent 1. The appeals forming the gravamen of the charge of corrupt practice do not carry in them the element of an appeal to vote for any person on the ground of religion."
In view of the aforesaid decisions, it is clear that the appeal to vote on the ground of religion must be the religion of that candidate. The appeal is to be made on the basis of the religion of the candidate for whom votes are solicited. There is no such assertion to this effect in the election petition. In fact the assertion is, that the appeal was to garner Muslim votes. Admittedly the respondent is not a Muslim. Thus, on this ground, material facts are lacking.
In this regard, the learned counsel for the petitioner contended that the question of interpretation of Section 123(3) of the Act with regard to the appeal on the ground of the religion of the candidate or otherwise is engaging the attention of the Supreme Court and that the Supreme Court itself has referred it to the larger Bench vide Narain Singh Vs. Sunder Lal Patawa, 2003 (9) SCC 300 and again in Abhiram Singh vs. C.D. Commachen (Dead) by Legal Representatives and others, 2014 (14) SCC 382. The learned counsel consequently contended that an arguable case has been made out and that the petition should be admitted.
In this regard, the Court finds that the mere fact that the interpretation of Section 123(3) of the Act has been referred to a larger Bench, does not make the decisions of the Supreme Court in Dr. Ramesh's case (supra) and Harmohinder's case (supra) otiose. So long as the said decisions are not reversed, the said decisions are binding on this Court and would apply with equal force.
The allegation of corrupt practice is basically based on T.V. channel reports. This has been specifically asserted by the petitioner in paragraphs 56 and 57 of the election petition. In this regard, the Court is of the opinion that a news report without any further proof of what had actually happened through witnesses is of no value. It is at best a second hand secondary evidence as held by the Supreme Court in Samant N. Balakrishna Vs. George Fernandez and others, AIR 1969 SC 1201. The Supreme Court held that it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth gets perverted or garbled. The Supreme Court held that such news items cannot by itself prove itself and can only be considered provided there is other evidence. This Court finds that the said decision is clearly applicable, inasmuch as, no proof has been submitted by the petitioner with regard to the source of information. Such news channel reports cannot be taken into consideration unless it is accompanied by the statement of the reporter who voiced the news report in the T.V. channels. In the absence of such statement and in the absence of any evidence being brought on record, the Court finds that necessary material was lacking in the election petition. In K.M. Mani Vs. P.J. Antony, 1979 (2) SCC 221 the Supreme Court held that the speech made by a police officer exhorting the elections in an election meeting to support a candidate was not enough to constitute corrupt practice. The Supreme Court held that the transcripts of the alleged speech should have been made available.
In the light of the aforesaid, in order to constitute corrupt practice, it must be shown that the act was done during the election campaign between the date when the respondent became a candidate and the date of poll and that it was the act of the respondent or her agent or any other person with her consent to appeal to vote on the ground of her religion. Such ingredients are essential and are required to be pleaded in order to constitute a cause of action raising a triable issue. In the instant case, such ingredients are missing in the election petition. Material facts are lacking and, consequently, the Court finds that no cause of action arises on this issue.
In these circumstances, the Court finds that the pleadings in the election petition does not set out the material facts and, therefore, constitutes an incomplete cause of action. The application under Order 7, Rule 11 of the Code of Civil Procedure is allowed as a result of which the election petition is dismissed with costs. Since the application under Order 7, Rule 11 of the Code of Civil Procedure has been allowed it is not necessary for the Court to decide the application under Order 6, Rule 16 of the Code of Civil Procedure.
Date:11.7.2016 Bhaskar (Tarun Agarwala, J.)