REGISTERED No. D. (D)-72
The Gazette of India
EXTRAORDINARY
PART II-Section 3—Sub-section (ii)
PUBLISHED BY AUTHORITY
No. 189] NEW DELHI, SATURDAY, MAY 7,1977/VAISAKHA 17, 1899
Separate paging is given to this Part in order that it may be filed
as a separate compilation
MINISTRY OF LAW, JUSTICE AND COMPANY AFFAIRS (Legislative Department) NOTIFICATION New Delhi, the 7th May 1977
S.O. 310 (E).—The following Order made by the President is published for general information :—
ORDER
Whereas Shri Umed Singh, the returned candidate from 31-Meham constituency in the State of Haryana at the general election in 1972 to the Legislature Assembly of Haryana has incurred disqualification for a period of six years under section 8A of the Representation of the People Act, 1951 (hereinafter referred to as the said Act) as it stood immediately before the commencement of the Elec- tion Laws (Amendment) Act. 1975 (40 of 1975);
And whereas the said period of disqualification has not expired, And whereas the said Shri Umed Singh has submitted a petition to the President under sub-section (2) of section 8A of the said Act for the removal of the disquali- fication for the unexpired portion of the said period;
And whereas the President has sought the opinion of the Election Commission on the said petition in pursuance of sub-section (3) of section 8A of the said Act, And whereas the Election Commission has given its opinion (vide Annexure) that there are circumstances in the present case which would justify the removal
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i g gg THE GAZETTE OF INDIA EXTRAORDINARY P AM 11—SKC. 3(11)of the disqualification incurred by the petitioner for the unexpired portion of the period of six years;
Now, therefore, I, Basanpa Danappa JattI, Vice-President acting as President of India, in exercise of the powers conferred on me under sub-section (3) of seciion 8A of the said Act do hereby decide in accordance with the opinion of the Election Commission that the disqualification for a period of six years incurred by Shri Umed Singh be removed for the unexpired portion of the said period.
Rashtrapati Bhavan;
B. D. JATTI,
New Delhi, the 7th May, 1977. Vice-President acting as President,
ANNEXURE
ELECTION COMMISSION OF INDIA
OPINION
BEFORE THE CHIEF ELECTION COMMISSIONER OF INDIA
IN R E. Reference from the President under section 8A(3) read unth section 8A(2) o/ the Representation of the People Act, :951 regarding the case of Shri Vmed Singh.
This fs a reference to the Commission from the President of India under section 8A(") read with section 8Af2) of the (Representation of the People Act, 1051 (hereinafter referred to as the ACT) The election ol Shri Umed Singh (herein.ttter referred to as the 'returned candidate') to the Legislative Assembly of Haryana in. 1972 had been set aside on the ground of the commission of a corrupt practice under section 123(5) of the Act. The decision of the Supreme Court In appeal was given on 28 August, 1974 and therefore the returned candidate stands disqualified under section 8A of the Act, aa it stood before the commencement of the Election Laws (Amendment) Act, 1975, for a period of six years from that date. The opinion of the Commission is now sought as to Whether the disqualification of the returned candidate for the unexpired portion of the period of his disqualifica- tion may be removed or not
2. The facti of the case in brief are as follows.—
(1) The returned candidate stood as an independent candidate from 31-Mehom Assembly constituency at the general election to the Legislative Assembly of Haryana held in 1972 He was opposed by three other candidates. His election was challenged before the High Court of Punjab and Haryana on several grounds. The High Court framed 20 Issues for the trial of the petition. Out of these 18 related to the commission of corrupt practices. In its order dated 1 May 1973, the High Court found the returned candidate guilty of the commission of (i) the corrupt practice under section 123(1) (A) (a) of the Act of bribery, and (ii) the corrupt practice under section 123(5) of the Act of hiring and procuring of vehicles for the free conveyance of voters to and from a polling station on the date of poll. In regard to the corrupt practice of hiring and procuring of the vehicles, the election petitioner had alleged that the returned candidate had used 12 vehicles for the free conveyance of voters in different places. The High Court however, held that the use of only 2 jeeps and 2 trucks for the iree con- veyance of voters had been proved.
(2) On appeal in its order dated 2fl January, 1974 the Supreme Court reversed the findings of the High Court in regard to the commission of the corrupt practice of bribery.
As regards the findings relating to the commission of the corrupt practice of hiring and procuring of vehicles for the free conveyance of voters the Supreme Court confirmed the finding of the High Court in regard to the use of only one truck viz, HRR 7101 for the free conveyance of voters to and from the polling station at Sama Village. The findings of the High Court against the returned candidate In regard to th" other truck and the two Jeeps were reverted.
3. On 18 April 1977, the returned candidate and his counsel Shrlmati Sushma Swaraj, Adrocate appeared at a personal hearing. The counsel urged that the
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' disqualification incurred by the returned candidate for the unexplred portion be removed in the light of the following submission —
(i) The petitioner is a young man of 31 years. When he contested the election in 1972, he was only about 26 year3 old and was fresh from college.
(il) Out of the 18 issues framed at the trial of the election petition, the Hitfh Court had found the returned candidate guilty in respect of only 2 issues. On appeal, the issue relating to the corrupt practice under section 123(1) (A)(a) (Bribery) was decided by the Supreme Court in favour of the returned candidate. With regard to the corrupt practice under section 123(5), the Supreme Court had confirmed the findings of the High Court with respect to only one truck viz. HRR 7101. It struck down the findings of the High Court against the returned candidate in respect of the other three vehicles. The Paper Book of the case before the Supreme Court shows that truck No. HRR 7101 had been used for conveying voters to and from village Bedwa to the polling station at Sama According to the evidence produced before the Court on behalf of the election petitioner there were about 350 voters in that village and there was greater support for the returned candidate than for the election petitioner Voters of all classes and castes of that village including Jats, Harijans and members of the backward classes were supporting the returned candi- date. Some of the voters are stated to have gone to the Polling Station on tractors etc not supplied by the returned candidate. Thus, the use of the said vehicle by the returned candidate for conveying voters of that village to and from the polling station did not amount to wrongful inducement to the voters for the purpose of the furtherance of the prospects of his election; nor did such conveyance in fact affaet the result of the election in favour of the returned candidate
(Hi) In the recent reference case of Shri Balwan Singh, an ex-member of the Uttar Pradesh Legislative Assembly, who was found guilty of the commission of a corrupt practice under section 123(5), the Election Commission had recommended the imposition of disqualification only for a period of 5 years from the date of the order of the President fuide Annexure to SO. 70bi,5) dated 4th November, 1976] Shrl Balwan Singh had been found guilty by the Court of using illegally three vehicles for conveyance of voters to and from polling stations In different parts of the constituency In the present case, the returned candidate was found guilty of using only one vehicle in a particular village In the case of Balwan Singh it had also been proved that It was his second offence inasmuch as he had been already found guilty of a similar corrupt practice at an earlier election. In the present case. It was the first offence of the returned candidate. Thus, the returned candidate in this case merited the imposition of a leaser punishment
(iv) Prior to the amendment of section 8A of the Act the Incurring of a disqualification for a period of six years for the commission of a corrupt practice was automatic and the Commission was then em- powered to remove or reduce the period of disqualification. After the amendment, a discretion has been given to the President on the ad- vice of the Commission, to impose a disqualification for any period not exceeding six years from the date of the final order of the' Court finding the person guilty of the commission of a corrupt practice. In respect of a disqualification Incurred prior to the amendment of section 8A. however, the discretion vested in the President under section 8A(2) is onlv for the removal of the disqualification for the expired portion of the original disqualification for six years The present reference is a fit case for thP exercise of the discretion in favour of the returned candidate for the removal of the disqualifica- tion for the unexpired portion of the six year period
(v) The returned candidate had been prevented from contesting the recent general election to the House of the People Thus, the rationale that a person found guiltv of a corrupt practice at an election should not be allowed to participate in at least one general election is satisnea in the present case and the returned candidate should not suffer any further disqualification
4 I have carefully considered the above submissions It would be not proper for me to review the findings of the Supreme Court on fact or on law as the Election
1888 T HE GAZETTE OF INDIA EXTRAORDINARY PART II—SEC 3(il)Commission cannot assume to itself an appellate jurisdiction vis a via the highest judicial tribunal of the land. However I jra of the view that there are some sub- stantial mitigating circumstances in the present case Out of the numerous chafes of the commission of various corrupt practices, the returned candidate was ulti- mately found guilty of the commission of only one corrupt practice under section 123(5) of the Act and that in respect of only one vehicle used at one polling sta- tion for conveying electors of a single village It is indeed the rulP that the proof of the commission of even one Instance of one corrupt practice by a candidate or his election ajjent should invite censure. This is as it should be But there has to be a measure of correspondence between the gravity of the misdemeanour and the punishment imposed Had there been a discretion vested in the authority ordering the extent of disqualification at the time at which this case was finally decided (i.e. before the recent amendment of section BA), the present case in view of the youth and inexperience of the returned candidate and the proved use of only one vehicle in one location would in all probability, have attracted a sub- stantially smaller period of disqualification than the maximum six years (which was the unvarlable mandatory disqualification under the unamended section 8A)
5. Having regard to the circumstances, I am of the view that the ends of justice would be served in the present case if the disqualification for the period of six years which the returned candidate suffers from 28th January, 1974 is terminated by the President with effect from the date of his order on the present case under section 8A of the Act.
Accordingly, I tender opinion under section 8A(H) read with section 8A(2) of the Act that the disqualification of the returned cpndidate be removed m respect of the unexpired portion of the original disqualification for six years Incurred by him under section 8A of the Act as it stood before It was amended by the Election Laws (Amendment) Act, 1975 (Act 40 of 1975)
New Delhi;
(Sd.) T. SWAMINATHAN,
23 April, 1977. Chief Electxon Commission of India
[No, F.7(I2)/77-LegII]
K K. SUNDARAM, Secy,
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Ig g0 THE GAZETTE OF INDIA EXTRAORDINARY PAHT II—SEC. SOi)1891
I 8 92 T HE GAZETTE OF INDIA EXTRAORDINARY PAKT II—SIC, 3 (11)