Burden of proof in election cases

“In our country, election is a fairly costly and expensive venture and the Representation of People Act has provided sufficient safeguards to make the elections fair and free. In these circumstances, therefore, election results cannot be lightly brushed aside in election disputes”.

Appreciation of evidence and burden of proof in election cases

Burden of proof resting on a person seeking a declaration of the voidness of election

It will be seen from the following decisions that it has been consistently laid down by the Supreme Court in a number of cases that burden of proof resting on a person seeking a declaration of voidness of election is very heavy in the sense that he is required to prove every charge of corrupt practice beyond reasonable doubt. In other words, the burden to be discharged by the petitioner in a case is the same as the burden on the prosecution to prove a criminal charge.

The first decision, which was cited at the Bar in this connection was the decision in the case of D. Venkta Reddy v. R. Sultan and others (A.I.R. 1976 SC 1599), where in it is observed.

“In a democracy such as ours, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral process must be preserved and maintained. The valuable verdict of the people at the polls must be given due respect and candour and should not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of a shaky or prevaricating character. It is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election.

In our country, election is a fairly costly and expensive venture and the Representation of People Act has provided sufficient safeguards to make the elections fair and free. In these circumstances, therefore, election results cannot be lightly brushed aside in election disputes. At the same time, it is necessary to protect the purity and sobriety of the elections by ensuring that the candidates do not secure the valuable votes of the people by undue influence, fraud, communal propaganda, bribery or other corrupt practices as laid down in the Act.

Another principle that is equally well settled is that the election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence. The allegations of corrupt practices being in the nature of a quasi criminal charge the same must be proved beyond any shadow of doubt. Where the election petitioner seeks to prove charge by purely partisan evidence consisting of his workers, agents, supporters and friends, the Court would have to approach the evidence with great care and caution, scrutiny and circumspection and would, as a matter of prudence though not as a rule of law, require corroboration of such evidence from independent quarters, unless the Court is fully satisfied that the evidence is so credit-worthy and true, spotless and blemishless, cogent and consistent, that no corroboration to land further assurance is necessary.”

The Supreme Court in the case of Kanhaiyalal v. Mannalal & Ors. (A.I.R. 1976 SC 1886) reproduced with approval the following passage from the case of Rahimkhan v. Khurshid Ahmed (A.I.R. 1975 SC 290) dealing with the appreciation of oral testimony in election cases, namely.

“We must emphasise the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half-a- dozen witnesses apparently respectable and dis-interested to speak to short of simple episodes such as that a small village meeting took place where the candidate accused his rival of personal vices. There is no X-ray whereby the dishonesty of the story can be established and, if the Court were gullible enough to qulp such oral versions and invalidate elections, a new meance to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kil-kenny cat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. The court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man’s public life.”

In Amolak Chand Chhazad v. Bhagwandas Arya & Anr, (A.I.R. 1977 S.C. 813) also, it has been laid down that election petition alleging corrupt practice are proceedings of quasi-criminal nature and burden is on the person alleging corrupt practice to prove allegations beyond reasonable doubt.

Similarly, it is held in Rajendra Singh Yadav v. Chandra Sen & Ors. (A.I.R. 1979 SC 882) that it is well settled that allegation of corrupt practices have to be made and proved like a charge in a criminal case and that what is not pleaded cannot be allowed to be the subject matter of evidence, as also that the allegations must be proved beyond reasonable doubt and not merely by way of preponderance of probabilities. It is also pointed out in this case that it is not at all difficult for a defealted candidate to produce a few witnesses in support of allegations of corrupt practice after the event, even though the truth may be far different from what they state.

In the case of A. Younus Kunju v. R.S. Unit and others (A.I.R. 1984 S.C. 960), while reiterating the same position as to the onus of proof to be discharged by the election petitioner, the Supreme Court, has referring to the evidence before it pointed out,

“Admittedly, all these witnesses were the workers of the appellant. There is overwhelming material on the record, and even counsel fairly admitted, that the election was fought on party basis and there was sharp division of the electorate on the basis of political parties. That being the position, workers at the election with party alignment would necessarily be political supporters of the respective candidates and when called as witnesses, they would support their stand. Instances are not uncommon where such witnesses support their respective candidates and their cases even though the same be far from truth. In such circumstances, we do not think on the oral testimony of these four witnesses the charge of publication of objectional materials can be said to have been established.”

Of course in the two cases of Ram Sharan Yadav v. Thakur Muneshwar Nath Singh and others (A.I.R. 1985 SC 24) and S. Harcharan Singh v. S. Sajjan Singh and others (A.I.R. 1985 SC 236). The Supreme Court has sounded a note of caution by observing that there is no ritualistic formula nor a cut-and- driend test to lay down as to how a charge of undue influence can be proved, but if the circumstances taken together lead to the irresistible inference that the voters were pressurised, threatened or assaulted at the instance of either the candidate of his supports or agent with his consent or with his agent’s consent that should be sufficient to vitiate the election of the returned candidate. It is also pointed out that while insisting on standard of strict proof, the court should not extend or stretch this doctrine to such an extreme extent as to make it well-nigh impossible to prove an allegation of corrupt practice because such an approach would defeat and frustrate the very loudable and sacrosanct object of the Act in maintaining purity of the electoral process. This note of caution, however, does not in any way dilute the doctrine of insistence of proof beyond reasonable doubt in case of allegations of corrupt practice in an election petition.

It may be mentioned here that the above principle of having to insist on strict proof of allegations of corrupt practices are demanded.