AFR

Reserved

Election Petition No.4 of 2014

Ramesh Singh ...... Petitioner

Vs.

Sonia Gandhi and another ….. Respondents

******************

Hon'ble Tarun Agarwala, J.

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.
 (2)

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. 30 th 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
 (3)

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
 (4)

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 31 st 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
 (5)

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
 (6)

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
 (7)

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
 (8)

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
 (9)

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
 (10)

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.
 (11)

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
 (12)

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
 (13)

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
 (14)

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
 (15)

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.

 (16)

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
 (17)

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
 (18)

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 13 th 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
 (19)

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 30 th 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
 (20)

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
 (21)

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
 (22)

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
 (23)

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
 (24)

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.
 (25)

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
 (26)

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
 (27)

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
 (28)

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.
 (29)

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
 (30)

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.
 (31)

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
 (32)

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 30 th 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
 (33)

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
 (34)

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
 (35)

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.
 (36)

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
 (37)

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

 (38)

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
 (39)

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
 (40)

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
 (41)

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,
 (42)

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
 (43)

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
 (44)

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
 (45)

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
 (46)

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.
 (47)

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.)