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REGISTERED No. D. (D)-72

The Gazette of India

EXTRAORDINARY

PART II—Section 3—Sub-section (ii)

PUBLISHED BY AUTHORITY

NO. 244] NEW DELHI, THURSDAY, JUNE 16, I977/JYAISTHA 26,1899

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 16th. June 1977

S.O. 397 (E).—The following Order made by the President is published for general Information.

ORDER

Whereas Shri Jasdev Singh Sandhu, a returned candidate to the Legislative Assembly of the State of Punjab at the general elections held in 1972 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 immediate- ly before the commencement of the Election Laws (Amendment) Act, 1973 (40 of

And whereas the Bald period of disqualification has not expired-

And whereas the said Shri. Jasdev Singh has submitted a petition to the president under sub-section (2) of section 8A of the said Act the removal of the disqualification 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-

(2075)

And whereas the Election Commission has given its opinion (vide—Annexure) i that the petiiion of the returned candidate under section 8A(2) of the Act b" rejected,

Now, therefore, I, Basappa Danappa Jatti, Vice-President acting as President of India, m exerciie of the powers conferred on me under sub-sectlorj (3) of section 8A of the said Act do hereby reject the petition of the said Shri Jasdev Sin^h Sandhu

B. D. JATTI iRashtrapati Bhawan, New Delhi, Vice-President Acting as President of India.

ANNEXURE

ELECTION COMMISSION OF-INDIA

BEFORE THE CHIEF ELECTION COMMISSIONER OF INDIA

IN RE Reference from the President under section 8A(3) rend with section SA(2)

of the Representation of fhe People Act, 1951 regarding the case of Shn

Jasdev Singh Sandhu

Thia is a reference to the CommlsMin from the President of India under section 8A(3) read with section 8A(2) of the Representation of the People Act, 1951 (hereinafter referred to as the Art) The election of Shri Jasdev Singh Sandhu (hereinafter referred to as the returned candidate) to tho Legislative Assembly of Punjab in 1972 had been set aside by the Supreme Court on the ground of the commission of corrupt practices under section 123(3) and C.iA) of the Act The decision of the Supreme Court in appeal wa<* Riven on 28 February, 1975 and therefore the returned candidate stands disqualified under section BA of the Act, as it stood before the commencement of the Election Laws (Amendment) Act, 1I'7J, for a period of six years from that date, The opinion of the Commission IF now sought as to whether the disqualification of the returned candidate for Ihe unexpired portion of the period o[ his disqualification mav be removed or not

2. The facts of the case in brief are as follows —

The election of the returned candidate whn successfully contested the general election to the legislative assembly of Pumab in 1H72 on the Akail Dal ticket from Dakala assembly constituency was challenged before the High Court of Punjab and Haryana by two electors of the constHuency on the Er°und of the Commission of corrunt practices under section 123(1)(A) (Bribery), 12-3(3) (appeal on the ground of religion) and 123(3A) (Promotion of feelings of enmity or hatred between different classes of citizens of Tndia) The issue relating to bribery was not pressed before the High Court The allegation of corrupt practices under Roctlon 123(3) and (3A) of tho Act related to the Publication of a poster at tne Instance of the returned candidate and wide distribution thereof in the constituency The poster contained on qpneal to Sikhs and If proved, it would amount to Ihe rommi'telon of corrupt practices und^r section 123(3) and (3A) of the Act me High Court came to the conclusion thnt the manuscript of the poster did bear the signature of .Tathedar Ram Singh in whoso name the poster had alleged to have been published on behalf of the returned candidate but indications were that the poster was not nrmted before the noil, that in any event from the evidence of the record a clear picture did not ^mcrpe as to when the printing was done ;m

On appeal the Supreme Court by lip ord^r d.Hed 2R February, 1975 reversed the decision of the HIBb Coi.rl .m.1 ^1 aside fhc rf^cHon of Ihe returned randidato an t h e - f o u nd of 1he commissTon of corrupt nmoticp? under section 13,,(.^ and "A ot (hH A c| As- c, roflilt of the doci^on of ihp Qunreme Court the rehirned candidate has nenrred dlsaualiHca^on und-r so,t,nn RA of ihe Act r"s ,1f stood

'" f r om 2R Fpl.ritnrv 117^ Onlv i1>ou) Z ^ ^- ? mnnths have el.m^H ^wcr

2077

Sushma Swaraj, Advocate, the returned cariaidate and two others were present Shrlmati Sushma Swaraj put forwaid various ploaa. They are briefly as under —

(1) The returned candidate' had been elected at earh election which he contested from 1957 and hail never L'een defeated

(n) At the bye-election held in May 1975 U> fill the vacancy caused bv the setting aside of the election of the returned candidate, the Wife of the returned candidate was elected.

(ill) The constituency from which the impugned election look place had mixed population of 40 per cent Hindus and (30 per cent Sikhs The main opposing candidate of the Congirss was also a Sikh, and the Impugned poster would nut therefore have been directed against any Sikh candidate

(iv) Tho returned candidate had been prevailed from contesting the recent Txik Sabha election held in March 11)77 and he had therefore already b"en punished adequately

(v) The High Court which had the opportunity of examining the witnesses and noticing their demeanour hnd come 1o 1he conclusion that benefit of doubt must go to the returned candidate,

I have carefully examined these pleas On the detailed appreciation of the evidence of various witnesses, the Supreme Court had come to the definite conclusion thut the rehpoiisihjh.1v Of the leturned candidate in getilng the offending poster printed had been established beyond all reasonable doubt The Court also held that the distribution of the pooler had been satisfactorily established, As regards the pica that the opposite Congress candidnto was also a Sikh and that therefore the appeal could not have been directed against another Sikh, the Supreme Court has observed that 1he Congress' candidate who was a Indy, was a Hindu married to a Sikh gentleman and thai because she was originally a Hindu it was sought to be taken advantage of by the returned candidate for his election purposes

The Commission cannot question the dear findings of the Supreme Court which are bindlnK on it There is no doubt whatsoever that the impugned poster contained a clear appeal to voters of the constituency on grounds of religion An appeal lo voiers on grounds of religion to vole for or refrain from voting for certain canrlidqies cuts at the very root and concept of a secular and non- discriminatory democracy which is enshrined in the Constitution As such, appeals on grounds of religion and the creation thereby of feelings of enmity or hntred between different clashes of Indian citizens irU'st be severely condemned and must be visited with the teveresl penally available under the law.

For the above ieasons, I cannoi Mee my wav 1° recommending to the President the removal of the disoualification incurred bv 1he returned candidate Accordingly, under section HAO) of thp Act, I hereby tender the opinion that the petition of the returned candidate under section 8A(2) of the Act be reacted.

New Delhi,

(Sd 1 T SWAMINATHAN,

10th May, 1477 Chief Election Commissioner of India

[No F. 7(17)/77-LegIII

K, K SUNDARAM, Secy

2079

I-KINIED BY THE GENERAL MANAGER, GOVERNMENT OF INDIA PRESS, MINTO ROAD,

* EW nn HI V ND p u ni I S H FD BY T HR r o N T H O L i Fn ir V U MI II A I I O NS n r i m, W71