Ziyauddin Burhanuddin Bukhari Vs.
Brijmohan Ramdass Mehra & Ors [1975] INSC 108 (25 April 1975)
GOSWAMI, P.K.
GOSWAMI, P.K.
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
ALAGIRISWAMI, A.
UNTWALIA, N.L.
KHANNA, HANS RAJ BHAGWATI, P.N.
CITATION: 1975 AIR 1778 1975 SCR 453 1975 SCC
(2) 260
CITATOR INFO :
RF 1976 SC2439 (6,7,9,10) RF 1977 SC 322 (26)
D 1978 SC 419 (12) R 1980 SC 31 (8) D 1986 SC1794 (7) E&D 1992 SC 504 (31)
ACT:
Representation of the People Act-Section
123(2), (3) & 3 (A)-Corrupt practice-Appeal on the ground of religionPromoting
feelings of hatred and enmity between different classes-Amendment of
petition-form of affidavit-Vagueness of petition-Evidence Act-Cassettes
evidence whether admissibleOrder of costs in favour of the respondent.
HEADNOTE:
The appellant a candidate of Muslim League
defeated respondent No. 3 Shauket Chagla, the Congress candidate in the
Maharashtra State in Assembly Election,.
Respondent No. 1, a voter filed an Election
Petition, inter alia, alleging that the appellant appealed to the voters to
refrain from voting for respondent No. 2 on the ground of religion and that the
appellant promoted feelings of enmity or hatred between different classes of
the citizens of India on grounds of religion.
The appellant made the following appeal to
the voters in his various election speeches :
(1)Muslim personal law was a matter of
religious faith for Muslims and that it extended to the mode of disposing of
bodies of the dead. The voters were told that if they voted for Chagla they
would have to cremate the bodies of their de-ad instead of burying them because
Chagla had cremated the dead body of his sister.
(2) The appellant entreated hi$ audience not
to vote for those who stood against their religion.
(3) Chagla was not true to his religion and
that the appellant was a true Muslim.
(4) If Muslim personal law may be considered
a personal matter by Chagla it was considered to be "the law of God"
by Muslims who would not tolerate any attempts to amend it as that would raise
a religious question.
(5) If the Congress Government brought any
amendments in Muslim religious law the battle would be fought in every street.
(6) Chagla advocated intercommunal or intercaste
marriages and that he wanted a Hindu to be a member of the Haj Committee.
(7) There were references to riots in which
only Muslims were alleged to have been killed.
(8) The appellant claimed that he would die
for Islam and further said that "God has blessed us that every drop of our
blood would give birth to thousands of Bukharis." (9) "At the moment
we are in such a war in which our opponent is such a person who is playing with
our religious affairs. He considers us to be a community whose conscience is
dead." (10)"We have not signed any deed of slavery for the Government.
When we find that the Government is working against us, our rights are being
crushed, our religious affairs are being interfered with, then we will rise
openly against it. We would rise like a wall cemented with lead. Then who would
bang with this wall, would get his hand broken. No harm would be done to
us." 282 (11)Chagla's wife Nalini was a Hindu and his son was named Ashok.
Chagla used to attend the mosque as well as the temple and he should be
excluded from Muslim localities.
(12)Chagla was neither a good Hindu nor a
true Muslim so that neither God nor Bhagwan was pleased with him.
The High Court allowed the petition and set
aside the election of the appellant. The High Court awarded costs of Rs. 12,000
to the first respondent and costs of Rs. 3,000 to the second respondent.
In the present statutory appeal the appellant
contended (1) The affidavit filed by the election petitioner was not in proper
form since it does not give the sources of information of the corrupt
practices.
(2) The High Court erred in not framing issue
on the vagueness of the petition.
(3) The High Court erroneously allowed the
amendment of the Election petition.
(4) The High Court ought not to have relied
on the cassettes of tape records.
(5) The appellant merely asked the voters to
support one who opposed any change in muslim personal law as against another
who wanted to change' 'it. If change of personal law is a secular matter
opposition to its change could not become an appeal on grounds of religion.
(6) The order of costs passed by the High
Court was very excessive.
(7) The appellant did not get a fair trial.
HELD : Our Constitution-makers intended to
set up a Secular Democratic Republic. Our political history made it
particularly necessary that the basis of religion, race, caste, community,
culture, creed and language which can generate powerful emotions depriving
people of their powers of rational thought, and action should not be permitted
to be exploited lest the imperative conditions for preservation of democratic
freedoms are disturbed. Section 123(2), (3) and (3A) were enacted to eliminate
from the electoral process appeals to those decisive factors which arouse
irrational passions that run counter to the basic tenets of our Constitution.
Due respect for the religious belief and practices, race, creed, culture and
language of other citizens is one, of the basic postulates of our democratic
system. The line has to be drawn by the court between what is permissible and
what is prohibited after taking into account the facts and circumstances of
each case interpreted in the context in which the statements or acts complained
of were/made. The court has to determine the effect of statements made by the
candidate upon the minds and feelings of the ordinary average voters of this
country. [298A-F] The High Court was right in holding that tape records of the
speeches were documents and were admissible in evidence, provided the voice of
the speaker was identified, accuracy of the actual recording ascertained-and
the relevancy of the subject matter established. [290A-B] The High Court
rightly considered the tape records to be reliable for the following three
reasons: firstly, the tape records have been prepared by an independent
authority, the police ; secondly, transcripts from the tape records were duly
prepared very soon after the tape records were made which made the subsequent
tampering easy to detect ; and thirdly, the police had made the tape records as
part of its routine duties and not for the purpose of laying any trap to
procure evidence. [290G-H, 291A] The High Court rightly treated the shorthand
notes and shorthand transcripts made by those who heard the speeches as
corroborative evidence and which could be used by the witness to refresh his
memory. [291-F] 283 The High Court rightly held that the various speeches made
by the appellant violated the provisions of section 123(2), (3) and (3A). We do
not consider such speeches have any place in a democratic set up in our
Constitution. Our democracy can only survive if those who aspire to become
people's representatives and leaders understand the spirit of secular
democracy. If such propaganda was permitted it would injure the interests of
the members of the, religious minority groups more than those of others. [293 BF,
294 E, G, 295 E, H, 296 B] The objection that the affidavit was not in proper
form is, wholly untenable. The alleged defect is one of lack of particulars
which was given up by the appellant in the High Court. [286 A & C] There is
no substance in the objection that the High Court did not frame an issue on the
question of vagueness of the petition. The real objection is that the
particulars of the speeches made by the appellant were given in great detail in
the statements annexed to the petition with the necessary affidavit. The law
does not require the whole evidence to be set out in the petition in the form
of particulars. [286 CDE] The trial court by allowing the amendment merely
removed the vagueness from the petition by confining the allegation of corrupt
practice against the appellant himself. [286 G-H] Various allegations have been
made of unfairness against the trial Judge. There is no substance in those
allegations.
The nature of these allegations discloses an
unreasonable attitude of the appellant's. counsel, which was also exhibited
during the course of the trial. [287-F] The order of costs appears to err on
the side 'of severity.
The order of costs in favour of respondent
No. 2 was set aside since the petition was filed by respondent No. 1. The costs
awarded in favour of respondent No. 1 was red-,iced from Rs. 12,000 to Rs.
6,000. [298 E, FG]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 134 of 1973.
From the Judgment and order dated the
27th/28th November, 1972 of the Bombay High Court in Election Petition No. 4 of
1972.
K.K. Singhvi, R. K. Garg, V. J. Francis and
S. C. Agarwala, for the appellant.
M.C., Bhandare, P. H. Parekh, and S.
Bhandare, for respondent No. 1.
The Judgment of the Court was delivered by
BEG, J.-This appeal under section 116A of the Representation of the People Act,
1951 (hereinafter referred to as 'the Act') is directed against the Judgment
and order of the High Court of Bombay setting aside the election of the
appellant to the Maharashtra State Assembly from Kumbharwada constituency held
on 9-8-1972 on a voter's ,election petition.
The voter alleged that the appellant, in the
course of his election, bad committed corrupt practices defined in Section 123,
sub. S. (2) and (3) and (3A) of the Act. The gist of the charges against the
appellant Ziyauddin Burhanuddin Bukhari (hereinafter referred to as `Bakhari'),
a Muslim League candidate, was, that, he had made 284 speeches in the course of
his election campaign calculated to induce a belief in the voters that they will
be objects of divine displeasure or spiritual censure if they voted for Shaukat
Currimbhoy Chagla (hereinafter referred to as 'Chagla'), a Congress Party
candidate, who was impleaded as the 2nd respondent that, in the above mentioned
speeches, the appellant had called upon the electors to vote for him and not
for Chagla on the ground that he alone stood for all that was Muslim whereas
Chagla represented all that was against Muslim religion and belief so that
Chagla could not be a true Muslim at all, the object of such appeals being to
further the chances of election of Bukhari and, to prejudicially effect the
prospects of the election of Chagla ; that, the appellant, Bukhari, had
attempted to promote feelings of enmity and hatred between Muslims and Hindus
on grounds of religion and community.
Particulars of the speeches delivered at
sixteen meetings and what was said there by Bukhari were furnished with the
election petition.
The alleged corrupt practices are defined in
the following provisions of Section 123 :
"(2) Undue influence, that is to say,
any direct or indirect interference or attempt to interfere on the part of the
candidate or his agent, or of any other person with the consent of the
candidate or his election agent, with the free exercise of any electoral right
Provided that(a) without prejudice to' the generality of the provisions of this
clause any such person as is referred to therein who(i) threatens any candidate
or any elector, or any person in whom a candidate or an elector is interested,
with injury of any kind including social ostracism and excommunication or
expulsion from any caste or community; or (ii)induces or attempts to induce a
candidate or an elector to believe that he, or any person in whom he is
interested, will became or will be rendered an object of divine displeasure or
spiritual censure, shall be deemed to interfere with the free exercise of the
electoral right of such candidate or elector within the meaning of this clause;
(b) a declaration of public policy, or a promise
of public action, or the mere exercise of a legal right without intent to
interfere with an electoral right, shall not be deemed to be interference
within the meaning of this clause.
(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
285 candidate or for prejudicially affecting the election of any candidate.
(3A) The promotion of, or attempt to promote
feelings of enmity or hatred between different classes of the citizens of India
on grounds of religion, race, caste, community. or language, by a candidate or
his agent or any other person with the consent of a candidate or his election
agent for the furtherance of the prospects of the, election of that candidate
or for prejudicially affecting the election of any candidate." Before
considering whether the allegations made in the petition are substantiated,
and, if so, whether any corrupt practice, as defined above was committed,
beyond reasonable doubt, by the appellant, we will deal with certain technical
objections placed before us at the outset by learned Counsel for the appellant.
It is urged that allegations of corrupt
practices, falling under Section 123(3) and 123(3A), are not supported by the
affidavit required by the proviso to Section 83(1) of the Act. Section 83 of
the Act enacts :
"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".
It was submitted that Section 80 of the Act
amounts to a prohibition against calling in question any election, "except
by an election petition presented in accordance with the provisions of this
part" (i. e. Chapter II which contains Section 83). Apart from the fact
that the High Court dealing with this question had, in our opinion, rightly
recorded the finding that the issue No. 2, framed on this objection, was
specifically given up in its entirety by the learned Counsel for the appellant,
so that he could not wriggle out of it by a vague reservation of some right to
286 urge that the affidavit filed was not in proper form, we were not shown any
defect of form at all in the affidavit filed. All that was urged is that the
relevant affidavit does not give the sources of information so far as corrupt
practices. under section 123 (3) and 123 (3A) are concerned.
As was pointed out by this Court in Hardwari
Lal v. Kanwal Singh(1), this is not a defect of the required form but may, in
suitable cases, form the subject matter of an objection based on Section 86 and
Section 123 (7) of the Act relating to supply of material particulars. It was
indicated by this Court in Prabhu Narayan v. A. K. Srivastav'a(2), that a
petition can only be dismissed for a substantial defect.
In the case before us, as there is no defect
at all in the form of the affidavit, and the alleged defect of want of
particulars, set up in paragraph 2 of the written statement on which issue No.
2 was framed, must be deemed to have been given up on behalf of the appellant,
we cannot now entertain in this Court an objection based on alleged want of
particulars, particularly as nothing material seems to have been wanting. We
also think there is no substance in the appellant's objection that the Trial
Court had not framed an issue on an alleged vagueness of the petition which is
another way of saying that it was wanting in particulars.
The particulars of the speeches made by the
appellant were given in great detail in the statements annexed to the petition
with the necessary affidavit. We can presume that, if such an objection on the
ground of insufficient particulars is actually given up by a party so that an
issue actually framed on it is not tried, the party could have suffered no
disadvantage from alleged want of further details which are really matters of
evidence. The law does not require the whole evidence to be set out with the
petition in the form of particulars.
Still 'another objection was that the Trial Court
had eroneously allowed an amendment of the election petition by an order dated
29-9-1972. Reliance was placed upon this Court's decision in Manubhai Nandlal
Anersey v. Popatlal Mainilal Joshi & Ors.(3) and Samant N. Balakrishna etc.
v. George Fernandez & Ors. etc.(4), to contend that the amendment asked for
should not have been allowed. We have examined the application for amendments
of the petition sought by the petitioner and allowed by the Court. We think
that the amendments really removed vagueness from the petition by confining the
allegations of corrupt practice to what of corrupt practice to what the
appellant Bukhari himself had said in his speeches. Attributions of those very
statements to his agents, in the alternative, which introduced some ambiguity,
were deleted. Another amendment sought was the insertion of names of persons
said to have made certain other speeches. The High Court had allowed the
amendments on the ground that they did not amount to any allegation of a fresh
corrupt practice. The question whether the speeches of certain persons other
than the appellant were rightly permitted to become the subject matter of
consideration by the amendment has lost all (1)[1972] (2) SCR 742.
(2)C.A. No. 1174 of 1973-delivered on
14-2-75.
(3)[1969] (3) SCR 217.
(4) [1969] (3) SCR 603.
287 importance as the appellant has been held
guilty of corrupt practices solely for speeches made by himself and we propose
to deal with those only. We, therefore, find no force in the objections to the
order allowing amendment of the election petition, which only clarified the
petitioner's case.
Learned Counsel for the appellant invited out
attention especially to ground `H' of the grounds of appeal. This is the most
prolix of all the grounds of appeal the number of which not only exhausts the
whole alphabet 'A' to 'Z' but ground numbered 'Z' is divided into , sub grounds
'Zl' to 'Z.15', and each of these sub-grounds is further split up into a number
of minor grounds. Ground 'H' itself is split up into 22 parts which cover 5
printed pages of our paper book. Ground 'H' thus consists of a long statement
of the appellant's grievances about multifarious matters covering the whole
course of trial of the case, such as a permission given by the Court to recall
a police Sub-Inspector for further examination, permission accorded by the
Court to the respondent's Counsel for getting transcripts of the appellant's
tape recorded speeches made under the supervision of a Court officer,
permission granted to the Solicitors of Chagla to obtain copies of documents
filed, the observations recorded by the learned Judge about the demeanour of
witnesses and other similar matters. No illegality whatsoever is even alleged
in most of these purported grounds of objection. If these grounds indicate a
carpingly unreasonable attitude of the appellants Counsel during the course of
the trial in the High Court or attempts to make mountains out of molehills,
they may afford some light on why the rather unusual order of heavy costs was
passed by the learned Judge with which we shall deal separately at the end of
this Judgment we are, however, unable to find, from material on record, that
the conduct of the trial by the learned trial Judge was unfair in any respect.
Moreover, we think that the only really material question before the Court for
decision, on which we have ourselves reexamined the whole evidence on record,
were :
Did the appellant's speeches contain what was
said to be tape-recorded and also sought to be proved by oral evidence
supported by the notes of those who are alleged to have heard these speeches
themselves ? If this was so, was their effect upon the ordinary average voters
of this country such as to come within the mischief provided for by any of the
three heads of provisions of Sec. 123 of the Act set out above ? These are
questions capable of determination objectively irrespective of the subjective
inclinations or opinions of the Judge deciding such issues although we cannot,
and should not even try to, escape the consequences, upon any case before us,
of our conclusions about the purposes and meanings of the relevant provisions
of Section 123 of the Act, set out above, reached by applying relevant rules of
interpretation of such provisions.
We propose to indicate, at this stage, what
mischief the provisions were designed to suppress because that seems to us to.
be the most illuminating and certain way of correctly construing these
statutory 288 provisions. We cannot do so without adverting to the historical,
political, and Constitutional background of our democratic set up, such
provisions are necessary in our opinion, to sustain the spirit or climate in
which the electoral machinery of this set up could work.
Our Constitution-makers certainly intended to
set up a Secular Democratic Republic the binding spirit of which is summed up
by the objectives set forth in the preamble to the Constitution. No democratic
political and social order, in which the conditions of freedom and their
progressive expansion for all make some regulation of all activities
imperative, could endure without an agreement on the basic essentials which
could unite and hold citizens together despite all the differences of religion,
race, caste, community, culture, creed and language. Our political history made
it particularly necessary that these differences, which can generate powerful
emotions, depriving people of their powers of rational thought and action,
should not be permitted to be exploited lest the imperative conditions for the
preservation of democratic freedoms are disturbed.
It seems to us that Section 123, sub s. (2),
(3) and (3A) were en acted so as to eliminate, from the electoral process,
appeals to those divisive factors which arouse irrational passions that run
counter to the basic tenets of our Constitution, and, indeed, of any civilised
political and social order. Due respect for the religious beliefs and
practices, race, creed, culture and language of other citizens is one of the
basic postulates of our democratic system. Under the guise of protecting your
own religion, culture or creed you cannot embark on personal attacks on those
of others or whip up low hard instincts and animosities or irrational fears
between groups to secure electoral victories. The line has to be drawn by the
Courts, between what is permissible and what is prohibited, after taking into
account the facts and circumstances of each case interpreted in the context in
which the statements or acts complained of were made.
Section 123 (2) gives the "undue
influence" which could be exercised by a candidate or his agent during an
election a much wider connotation than this expression has under the Indian
Contract Act. "Undue influence", as an election offence under the
English law is explained as follows in Halsbury's Laws of England, Third
Edition, Vol. 14, p. 223224 (para 387)"A person is also guilty of undue
influence, if he, directly or indirectly by himself or by any other person on
his behalf, makes use of or threatens to make use of any force, violence or
restraint, or inflicts, or threatens to inflict, by himself or by any other
person, any temporal or spiritual injury, damage, harm or loss upon or against
any person in order to induce or compel that that person to vote or refrain
from voting or on account of that person having voted or refrained from voting.
A person is also guilty of undue influence
if, by abduction, duress or any fraudulent device or contrivance, he impedes or
prevents the free exercise of the franchise of an elector or proxy for an
elector, or thereby compels, induces 289 or prevails upon an elector or proxy
for an elector either to vote or to refrain from voting".
It will be seen that the English law on the
subject has the same object as the relevant provisions of Section 123 of our
Act. But, the provisions Section 123 (2), (3) and (3A) seems wider in scope and
also contain specific mention of what may be construed as "undue
influence" viewed in the background of our political history and the
special conditions which have prevailed in this country.
We have to determine the effect of statements
proved to have been made by a candidate, or, on his behalf and with his
consent, during his election, upon the minds and feelings of the ordinary
average voters of this country in every case of alleged corrupt practice of
undue influence by making statements. We will therefore, proceed to consider
the particular facts of the case before us.
We have already mentioned above that the
offending statements were alleged to have been made by the appellant at sixteen
election meetings addressed at various places between 12-2-1972 and 6-3-1973.
Out of these, the petitioner's counsel had given up, in the Trial Court,
reliance on speeches At four meetings some of which were held at places outside
the appellant's constituency. The High Court held that the contents of speeches
alleged to have been made on 1-3-1972 at Erskine Road and on 3-3-1972 at Ismail
Curtay Road and on 4-3-1972 at Nizam Street by the appellant were not duly
proved. The High Court did not find that the statements made by the appellant
in the course of the speeches on 12-2-1972 at Kachi Memon Jamat Khana and on
23-2-1972 and 28-2-1972 at Chima Butcher Street had transgressed the limits of
propriety set by Section 123(2) and (3) and (3A) of the Act. But, it found that
the appellant had violated the provisions of either Section 123(2) or 123(3) or
123(3A) of the Act by statements made in the course of the remaining six
speeches proved to have been made by the appellant.
The evidence relating to the appellant's
speeches, discussed fully by the High Court, consisted of :
1. Cassettes or tape records of the
appellant's speeches.
2. Transcripts of tape recorded speeches
prepared shortly after tape-recording them.
3.Full shorthand records of speeches of the
appellant by those who heard them at meetings.
4.Notes and records containing summaries of
the appellant's speeches made by persons attending meetings.
5.Statements of witnesses present at the
meetings who had actually heard what was said by the appellant.
There could be and was no objection, raised
to the admissibility of the last mentioned type of evidence. But questions
relating to the admissibility of the first four types of evidence, mentioned
above, were taken and may be conveniently dealt with here.
290 We think that the High Court was quite
right in holding that the tape records of speeches were "documents",
as defined by Section 3 of the Evidence Act, which stood on no different
footing than photographs, and that they were admissible in evidence on
satisfying the following conditions (a) The voice of the person alleged to be
speaking must be duly identified by the maker of the record or by others who
knew it.
(b)Accuracy of what was actually recorded had
to be proved by the maker of the record and satisfactory evidence, direct or
circumstantial, had to be there so as to rule out possibilities of tampering
with the record.
(c)The subject matter recorded had to be
shown to be relevant according to rules of relevancy found in the Evidence Act.
These requirements were deduced by the High
Court from R. V. Maqsud Ali (1) The High Court had also relied on Yusufalli
Esmail Nagree v. State of Maharashtra(2), to hold that a contemporaneous tape
record of a relevant conversation or speech would be part res gestae. In this
case, Court, while laying down requirements of admissibility of tape records as
evidence, also pointed out that the case with which the recording on a tape
could be erased by subsequent recording, so that insertion could be superimposed,
made it necessary to receive such evidence with caution, and it said that the
Court should be satisfied, beyond reasonable doubt, that the record had not
been tampered with The High Court also referred to N. Sri Roma Reddy and Ors.
v. V. V. Girl,(3) for the proposition that,
like any document, the tape record itself was "primary and direct evidence
admissible of what has been said and picked up by the receiver". In other
words, its use was not confined to purposes of corroboration and contradiction
only, but, when duly proved by satisfactory evidence of what was found recorded
and of absence of tampering, it could, subject to the provisions of the
Evidence Act, be used as sub stantiative evidence. Thus, when it was disputed
or in issue whether a person's speech, on a particular occasion, contained a
particular statement there could be no more direct or better evidence of it
than its tape record, assuming its authenticity to be duly established.
In our opinion the High Court bad rightly
relied upon the tape recorded reproductions of the appellant's speeches. It had
given three grounds for considering the tape records to be reliable and
authentic: firstly, the tape records had been prepared and preserved safely by
an independent authority, the police, and not by a party to the case, second,
the transcripts from the tape records, shown to have been duly prepared under
independent supervision and control, very soon afterwards, made subsequent
tempering with the cassettes easy to (1) [1965)(2) All.E.R.464.
(2)1968 (Vol.70) Bombay Law Reporter 76 @,78.
(3) [1971] (1) SCR 399.
291 detect; and, thirdly, the police had made
the tape records as parts of its routine duties in relation to election
speeches and not for the purpose of laying any trap to procure evidence.
We may add a fourth reason. This is that,
after, going through the deposition of Bukhari in Court, we find that, although
he was identified by police officers as the person who was speaking when the
relevant tape records were made he did not, at any stage, dispute that the tape
recorded voice was his. He only denied having made some of the statements found
recorded after the tape records had been played in Court in his presence. In
fact, he admitted that he knew that "the cassettes were recorded by police
officers' who gave evidence" in Court. If the indirect implication of his
dubious statement, in denying some of the statements found in the speeches
without denying that the voice making these statements was his', could be that
some portions had been interpolated, the police officers should have been
cross-examined about it. Nevertheless, the appellant admitted, under
cross-examination, that he had given no instructions to his Counsel to
cross-examine these officers on this matter. No suggestion was put to the
police officers concerned indicating that there had been any interpolation in
the records the making of which was proved beyond all reasonable doubt by
evidence which bad not been shaken.
As regards the shorthand transcripts of the
tape records, the evidence of their makers is there, it is certainly
corroborative inasmuch as it only goes to confirm what the tape records
contained. The tape records were the primary evidence of what was recorded. The
transcripts could be used to show what the transcriber had found recorded there
at the time of the transcription. This operated as a check against tampering.
They had been rightly used by the High Court only as corroborative evidence.
As regards the shorthand notes and full
short-hand transcripts made by those who heard the speeches, the High Court had
treated these also as corroborative evidence which could be used by a witness
to refresh his memory as laid down in Section 159 of the Evidence Act. It held
that their contents could be brought on record by direct oral evidence in the
manner prescribed by Section 160 of the Evidence Act, a course the propriety of
which has the support of decisions in this Court in Laxminarayan and Anr v. The
Returning Officer and Ors.(1), and in Kanti Prasad Jayshankar Yagnik v. Purshottamdas
Ranchhoddas Patel and OrS.,(2). We find no errors in the views adopted by the
High Court on these questions.
It was suggested that the tape recording, the
making of transcripts, the making of shorthand notes by the police had taken
place at the instance of a Journalist, Yunus Rehman Ansari, who appeared as a
witness for the petitioner in the case. He had frankly stated in his evidence
in Court :
"During the elections I was looking
after the interest of the second respondent. 1 did feel disappointed when the
(1)[1974] 3 S.C.C-. 425 (2) [1969] 3 SCR 400.
second respondent lost the election. Every
worker of the candidate feels disappointed if the candidate loses".
After having been taken through the evidence,
in the light of the submissions made by the learned Counsel for the appellant,
we are unable to hold that there must have been a conspiracy between the Police
Officers and Yunus Rehman Ansari to procure evidence for declaring the election
of Bukhari void. Ansari, although not a disinterested witness, had stood the
test,of cross-examination well and could not be disbelieved merely because he
was a worker of Chagla.
His evidence is corroborated by the duly
proved contents of tape recorded speeches, and, indeed, by some of the
admissions of Bukhari himself showing, inter-alia, that he considered any one
who advocated reform of Muslim personal law to be a person unfit to get the
support of "any Muslim".
He said :
"It is true that Muslim personal law is
apart of our religion (Wit. gives this answer after first attempting to evade
giving a direct answer). It would follow that whoever attempted to change the
Muslim personal law would be attempting to affect the Muslim, religion. It is
true that whoever attempted to do so would not be entitled to the support of a
true Muslim or of any Muslim. I conveyed this repeatedly in my speeches to my
electorate".
We will now take up the contents of each of
the six offending speeches, which, for the reasons indicated above, were
rightly held to have been proved beyond reasonable doubt to have been made by
the appellant.
The first of the speeches found to be
objectionable was delivered by the appellant on 27-2-1972, at Masjid Street,
within his own constituency. It is true that the con-tents of this speech are
proved only by the evidence of Ansari corroborated by the notes prepared by
Ansari himself. But, as these correspond with contents of other speeches
examined by us, there seems no reason to disbelieve Ansari when he says that
the appellant told the audience that Muslim personal law was a matter of
religious faith for Muslims and that it extended to the mode of disposing off
bodies of the dead. The appellant went on to tell the listeners that, if they
voted for Chagla, they would have to cremate the bodies of their dead instead
of burying them because Chagla had cremated the dead body of his sister.
The appellant also attacked Chagla's religion
by stating that everyone had to observe his religion wholeheartedly and not
like one who was (to put it in the equivalent English idiom) "neither fish
nor fowl". The appellant entreated his audience not to vote for those who
stood against their religion. The clear implication of his words was that
Chagla was not true to his religion whereas the appellant was, and, therefore,
the voters should prefer Bukhari. His absolutely unambiguous object was to
persuade the audience not to vote for Chagla but to vote for Bukhari on the
ground that Bukhari was a true Muslim whereas Chagla was not.
293 The High Court had referred to Kultar
Singh v. Mukhtiar Singh(1), and said that a candidate appealing to voters in
the name of his religion could be guilty of a corrupt practice struck by
Section 123(3) of the Act if lie accused a rival candidate, though of the same
religious denomination, to be a renegade or a heretic. The appellant had made a
direct attack of a personal character upon the competence of Chagla to
represent Muslims because Chagla was not, according to Bukhari, a Muslim of the
kind who could represent Muslims. Nothing could be a clearer denunciation of a
rival on the ground of religion. In our opinion, the High Court had rightly
held such accusations to be contravention of Section 123(3) of the Act.
The second speech found to contain
objectionable matter was proved to have been delivered by the appellant on
29-2-1972 at Hussainibagh, a place said to be so situated that, though it lies
outside the Kumbharwada constituency, a meeting there would be attended largely
by persons residing within Kumbharwada constituency. Its contents were proved
by a police Stenographer, Sheikh, who had made a full short-hand record of it
which was translated. In this speech, the ,appellant was shown to have stated
that, although Muslim personal law may be considered a personal matter by Chagla,
it was considered to be "the law of God" by Muslims who would not
tolerate any attempts to amend it as that would raise a religious question. In
the course of this speech, the appellant is reported to have said that, if the
Congress Government brought in "amendments in our religious law", the
"battle would be fought in every street" as "the question of
religion has arisen". The appellant had threatened the ruling Congress
party with open rebellion if attempts were made to change Muslim personal law
which he called "a question of religion". The appellant had also made
statements implying that Chagla was a supporter of this policy of change in
what Bukhari called "a matter of religion" for Muslims. The High
Court had held that these statements amounted to a violation of Section 123(3A)
of the Act, on the ground that Bukhari's language was calculated to promote
hostility between Hindus and Muslims. It opined that, in the appellant's mind,
,the Congress stood for the Hindu majority. We think that the language employed,
viewed in the context of its purposes, could also fall within the purview of
Section 123(3) of the Act inasmuch as Chagla was represented as a candidate
advocating what was contrary to Bukhari's view of Muslim religion. Indeed, the
words used by Bukhari could be said to have even graver implications.
However, we think that it was sufficiently
unrestrained and irresponsible so as to promote feelings of hostility between
different classes of citizens of India on ground of religion and also directed
personally against Chagla, an alleged supporter of an assumed attack on
Bukhari's relion. We do not find sufficient reason to differ from the view
adopted by the High ,Court that these statements amounted to electoral offences
struck by Section 123(3A) of the Act.
The third speech containing objectionable
matter was proved to been delivered by the appellant on 2-3-1972 at Saifi
Jubilee (1) [1964] 7 S.C.R. 790.
294 Street within his own constituency. Its
contents are proved by a full transcript made by Police Stenographer Sheikh, of
which an English translation was before the Court, and by the oral evidence of
Ansari corroborated by Ansari's notes.
It contained allegations against Chagla's
faithfulness to Muslim religion on the ground that he had advocated intercommunal
or inter-caste marriages and that he wanted a Hindu to be a member of the Hai
Commit-tee. After the usual fulminations against Chagla, the appellant flung a
question addressed to Chagla. It was translated : "With what check you say
that you are a representative of ours"? In addition, there were references
to riots in which only Muslims were alleged to have been killed. There was also
the usual statement that Muslim personal law was a matter of religion to
Muslims. Bukhari then declared that if this law was sought to be changed,
Muslim league candidates "would become such a wall' for them against Which
they will break their beads". Bukhari claimed that he could die for Islam.
He then said: "God has blessed us that
every drop of our blood would give birth to thousands of Bukharis".
It appears to us that the High Court was
right in construing the speech as highly inflammatory. It certainly. amounted
to the assertion that Muslim religion (or, what Bukhari thought it was) was in
danger and could only be saved by man like Bukbari and not by Chagla. We think
that it is a fair construction on the speech to hold that it amounted to at
least a violation of Section 123(3) of the Act. We think that it was also
struck by Section 123(3A) of the Act.
The-fourth speech of the appellant, said to
contain offending matter, was shown to have been delivered on 6-31972 at Bara
Imam Road within the appellant's constituency.
It was tape recorded by Sub Inspector N. A.
Khan. In it, after the usual accusations, Chagla is attacked in the following
words :
"At the moment we are in such a war in
which our opponent is such a person who is playing with our religious affairs.
He considers us to be a community whose conscience is dead".
The High Court rightly held it to be a
violation of Section 123(3) of the Act.
Another part of the speech which the High
Court is held to be violative of Section 123 (3A) of the Act runs as follows
"We have not signed any deed of slavery for the Government. When we feel
that this Government is working against us, our rights are being crushed, our
religious affairs are being interfered with, then will rise openly against it.,
We would rise like a wall cemented with lead. Then who would bang with this
wall, would get his head broken. No harm would be done to us".
It could be argued that, even if it did not
directly contravene the letter of Section 123(3A) of the Act, it was an
incitement to violence...
295 We, however, do not think it necessary to
go further into this question here. We are not prepared to disagree with the
opinion of the High Court about this speech. The High Court had rightly
concluded that, in the appellant's mind, the Congress Govt. constituted
"Hindu Raj The fifth objectionable speech of the appellant was shown to
have been made on 6-3-1972 at Saifi Jubilee Street within the Kumbharwada
constituency. This speech was heard by SubInspector Kulkarni who had made notes
containing the gist of all the speeches delivered at the meeting. Nothing was
brought out to cast any doubt on the veracity of SubInspector Kulkarni, who
appeared as a witness and gave out the contents of the appellant's speech. In
the speech, the appellant had attacked Chagla and his family on the ground that
Chagla had advocated the inclusion of Hindus in the Haj Committee. Bukhari
alleged that Chagla's wife, a Hindu lady called Nalini, his son Ashok, as well
as Chagla used to attend the mosque as well as the temple. Bukhari went so far
as to state that Chagla should be excluded from Muslim localities. Bukhari
alleged that Chagla and his family pleased neither Allah nor Bhagwan. In other
words, Bukhari, apart from making a direct attack on-the alleged religious
beliefs and practices of the Chaglafamily, clearly conveyed to the bearers that
Chagla was an unfit person, on the ground of his mixed religious faith and
practices, to represents Muslims Bukhari had also called upon Muslims to unite
against such a person if they wanted their religion to survive. The High Court
had very rightly held that these statements contravened the provisions of
Section 123(3) of the Act.
The sixth and the last speech containing
offensive matter was shown to have been made on 6-3-1972 at Chowki Mohalla
Underia Street which, although outside the Kumbharwada constituency, was so situated
as to attract the voters from the Kumbharwada constituency hardly 600 ft. away.
The speech was tape recorded by Sub-Inspector N. A. Khan. In this speech, the
appellant again attacked Chagla and repeated what, according to him, he had
also stated at another meeting, that is to say, that Chagla was neither a good
Hindu nor a true Muslim so that neither God nor Bhagwan was pleased with him.
He compared Chagla to a Dhobi's dog who neither belonged to the Dhobi nor to
the Ghat. The appellant, while thus attacking, the alleged personal beliefs and
practices of Chagla, obviously in an attempt to induce the voters to refrain
from voting for Chagla, prayed to God for success so that no one may be able to
attack the religion of Bukhari.
The whole outlook revealed by the speeches of
Bukhari is that of a medeival crusuder who had embarked on a Jehad for
extirpation of the heresy or "kufr" which, in Bukhari's imagination,
was represented by Chagla and his party. We do not consider such speeches to
have any place in a democratic set up under our Constitution-. Indeed, they
have none in the world of modern science which has compelled every type of
religion, for its own survival, to seek securer foundations than childlike
faith in and unquestioning conformity of obediency to an invariable set of
religious beliefs and practises.
10 SC/75-20.
296 We do not think that any useful purpose
is served by citing authorities, as the learned Counsel for the appellant tried
to do, to interpret the facts of the case before us by comparing them to the
very different facts of other cases.
In all such cases, the line has no doubt to
be drawn with care so as not to equate possible impersonal attacks on religious
bigotry and intolerance with personal ones actuated by bigotry and intolerance.
As already indicated by us, our democracy can
only survive if those who aspire to become people's representatives and leaders
understand the spirit of secular democracy. That spirit was characterised by
Montesquieu long ago as one of "virtue". It implies, as the late
Pandit Jawaharlal Nehru once said, ",self discipline". For such a
spirit to prevail, candidates at elections have to try to persuade electors by
showing them the light of reason and not by inflaming their blind and disruptive
passions. Heresy hunting propaganda on professedly religious grounds directed
against a candidate at an election may be permitted a theocratic state but not
in a secular republic like ours.
It is evident that, if such propaganda was
permitted here, it would injure the interests of members of religious minority
groups more than those of others. It is forbidden in this country in order to
preserve the spirit of equality, fraternity, and amity between rivals even
during elections.
Indeed, such prohibitions are necessary in
the interests of elementary public peace and order.
Learned Counsel for the appellant submitted
that if we considered the substance of what was said by the appellant it would
only amount to a plea that the voters should support one who opposes any change
in Muslim personal law as against another 'who wanted to change it. If change
of personal law is, it is suggested, only a secular matter, opposition to its
change could not become an appeal on grounds of religion. To accept this
argument would be to view the appeal to the voters after turning it upside
down, or, perhaps, inside out. We are not concerned so much with the real
nature of what is opposed or supported as with the grounds on which a candidate
claims support over a rival We have to primarily examine the cloak which the
appeal wears to parade in and not only what lies beneath it.
If all human activity in this world could be
labelled "secular", on the ground that it appertains to "this
world" as against "the other world", all religious thought and
activity could be described as "secular", as it takes place in this
world. But, the term it not used so broadly. It is a convenient label to
distinguish all that is done in this world without seeking the intervention or
favour of or propitiating a Superhuman or Divine Power or Being from that which
is done professedly to please or to carry out the will of the Divinity.
Secularism, in the realm of Philosophy, is a system of Utilitarian ethics,
seeking to maximize human happiness or welfare quite independently of what may
be either religious or the occult.
Primitive man does practically nothing
without making it wear religious garb because his understanding of the physical
world, of 297 human nature, and of social needs and realities, is limited.
He surrounds customary modes of action with
an aura of superstitious re verence. He is fearful of departures from these
lest he is visited by Divine wrath. Modern man, with his greater range of
scientific knowledge and better understanding of his own needs as well as of
the nature of the Universe, attempts to confine religion to its proper
sphere--that where he reaches a satisfying relationship between himself and the
Divinity he believes in so as to get an inner strength and solace which enable
him to overcome psychological crises or fears when confronted with disturbing
or disrupting events, such as a Death, or their prospects. He does not permit
his religion, which should be essentially his individual affair, to invade what
are property the spheres of law, politics, ethics, aesthetics, economics and
technology, even where its administration is institutionalised and it operates
as a social force.
The Secular State, rising above all
differences of religion, attempts to secure the good of all its citizens
irrespective of their religious beliefs and practices. It is neutral or
impartial in extending its benefits to citizens of all castes and creeds.
Maitland had pointed out that such a state has to ensure, through its laws,
that the existence or ,exercise of a political or civil right or the right or
capacity to occupy any office or position under it or to perform any public
duty connected with it does not depend upon the profession or practice of any
particular religion.
Therefore, candidates at an election to a legislature,
which is a part of "the State", cannot be Allowed to tell electors
that their rivals are unfit to act as their representatives on grounds of their
religious professions or practices. To permit such propaganda would be not
merely to permit undignified ;personal attacks on candidates concerned but also
to allow assaults on what sustains the basic structure of our Democratic State.
Our Constitution and the laws framed there under
leave citizens free to work out happy and harmonious relationships between
their religions and the quite separable secular fields of law and politics.
But, they do not permit an unjustifiable invasion of what belongs to one sphere
by what appertains really to another. It is for Courts to determine, in a case
of dispute, whether any sphere was or was not properly interfered with, in
accordance with the Constitution, even by a purported law. The validity of
Section 123 (2), (3) and (3A) has not been questioned before us. And, we have
explained above what these provisions are meant for.
To return to the precise question before us
now, we may repeat that what is relevant in such a case is what is professed or
put forward by a candidate as a ground for preferring him over another and not
the motive or reality behind the profession or ostensible ground that very
secular or mundane. It is the professed or ostensible ground that matters. If
that ground is religion, which is put on the same footing as race, caste, or
language as an objectionable ground for seeking votes, it is not permissible.
On the other band, if support is sought on a ground distinguishable from those
falling in the prohibited categories, it will not be struck by Section 123 of
the Act whatever else 298 it may or may not offend. It is then left to the
electorate to decide whether a permissible view is right or wrong.
According to his own professions, the
appellant wanted votes for himself on the ground that he staunchly adhered to
what he believed to be Muslim religion as contrasted with Chagla who did not.
There is no doubt whatsoever in our minds that the High Court had rightly found
the appellant guilty of the corrupt practices defined by the provisions of
Section 123(2), 123(3) and 123(3A) of the Act by making the various speeches
closely examined by us also.
Lastly, we have before us the order for costs
made by the High Court in the following terms :
"Having regard to the provisions of
Section 99 of the Act and Rules 24 and 26 of the Rules framed by this Court
under the Act, I order the first respondent to pay to the petitioner the sum of
Rs. 12,000/for costs. I also order the first respondent to pay to the second
respondent the sum of Rs. 3,000/for costs. There will be no order in regard to
costs of the other respondents as they have not filed written statements or
appeared at the hearing." We think that, although Section 99 of the Act
may permit the award of special costs in suitable cases, and, although, the
appellant has been found guilty of corrupt practices of quite an offensive
kind, yet, the order for costs appears to us to err on the side of severity. if
'the respondent Chagla is aggrieved in such a manner that he has grounds for
some actionable claim against the appellant, he can, if so advised, take other
steps which may be open to him under the law. An order for costs should not
become a substitute for such other action with which we are not concerned here.
Moreover, in the case before us, the petition
itself was not filed by the 2nd respondent Chagla. In these circumstances, we
do not think that there should have been an order for costs payable by the
appellant to the second respondent Chagla. We, therefore. set aside the order
awarding Rs.
3,000/as costs to Cbagla. We also reduce by
half the costs awarded to the successful petitioner, that is to say from Rs.
12,000/to Rs. 6,000/-. We, however, think that the appellant must pay
respondents 1 and 2 in this Court their costs occasioned by his appeal to this
Court.
The result is that, subject to the
modifications of the order for costs, to the extent indicated above, this
appeal is dismissed with costs to respondents 1 and 2 on whose behalf
appearance was put in.
P.H.P. Appeal dismissed.
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