In allegation of electoral corruption, guilt has to be proved to the hilt, Sibal submits in Supreme Court

Senior advocate Kapil Sibal, appearing for Tamil Nadu Chief Minister M.K. Stalin, submitted in the Supreme Court on Tuesday that “guilt has to be proved to the hilt” in a charge of corrupt practice against an electoral candidate under the Representation of the People Act.

Appearing before a Bench headed by Justice J.K. Maheshwari, Mr. Sibal said a mere “preponderance of probabilities” would not drive home a charge of corrupt practice like bribery of electors to vote in favour of a candidate under Section 123 of the 1951 Act.

Mr. Sibal was countering an appeal filed by S.S. Duraisamy alleging that there were videos and photos, contained in compact discs (CDs), allegedly showing corrupt practices committed ahead of the 2011 election of Mr. Stalin, including the distribution of money to lure voters.

The senior lawyer argued that Section 123 (corrupt practices) involved quasi-criminal proceedings and the allegations have to be proved beyond reasonable doubt. The consent, deemed or otherwise, of the candidate to the corrupt practice had to be shown.

He drew attention of the court to the section, which said a ‘corrupt practice’ involving ‘bribery’ would entail making of a “gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification” with an object to induce the voter.

“In the absence of a gift, offer or promise to a voter, the charge of bribery cannot even be tried,” Mr. Sibal submitted.

He said the burden was on the petitioner to show who the person or voter to whom the inducement was made. The person has to be cross-examined.

“Here, throughout every charge, no voter is produced, no promise is alleged. Somebody is said to have distributed money… What has that got to do with Section 123? First you have to come to the conclusion that the candidate committed bribery,” Mr. Sibal said.

Mr. Sibal said material facts should be clearly laid out in the pleadings to show the election was influenced.

He referred to Section 83 of the RP Act, mandating that an election petition should contain a concise statement of the material facts on which the petitioner relied on. The provision required the petition to “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”.

The Madras High Court had dismissed the allegations raised by Mr. Duraisamy for lack of conclusive evidence.

Mr. Duraisamy, represented by senior advocate Dama Seshadri Naidu in the apex court, has contended that the DMK party had used the “’Thirumangalam Formula”’ to provide money to the voters in a novel way through community feedings, courier service, currency in newspapers, Arathi Plate contributions and slips to purchase consumer items, etc. A goods vehicle had been caught with boxes of currency.

The High Court had earlier come to an “irresistible conclusion that there was no categorical averment that the 1st respondent (Mr. Stalin) had given his consent to his party functionaries to bribe the voters and self-help group members with a view to attract a misdeed of ‘corrupt practice’”.

The High Court had observed that Mr. Stalin could not possibly be held “vicariously liable” for the alleged act of his party functionaries.

“In regard to the allegation of money distribution by the 1st Respondent’s party by adopting Thirumangalam Formula in a novel way of community feedings, courier service, currency in News paper, Arathi Plate contributions and slips to the voters to purchase consumer items etc, this court points out that there is no convincing, satisfactory and acceptable proof produced on the side of the petitioner,” the High Court had noted.