Dr. Ramesh
Yeshwant Prabhoo Vs. Shri Prabhakar Kashinath Kunte & Ors [1995] INSC 822 (11 December 1995)
Verma,
Jagdish Saran (J) Verma, Jagdish Saran (J) Singh N.P. (J) Venkataswami K. (J)
J.S. Verma, J. :
CITATION:
1996 AIR 1113 1996 SCC (1) 130 JT 1995 (8) 609 1995 SCALE (7)1
ACT:
HEAD NOTE:
WITH CIVIL
APPEAL NO. 2835 OF 1989 Bal Thackeray V. Shri Prabhakar Kashinath Kunte &
Others
Both
these appeals are under Section 116A of the Representation of the People Act,
1951 (hereinafter referred to as "the Act/R.P. Act') against the judgment
dated 7th April, 1989 of the Bombay High Court in Election petition No. 1 of
1988 by which the election of Dr. Ramesh Yeshwant Prabhoo, the returned
candidate from, Vile Parle Constituency to the Maharashtra State Legislative
Assembly, held on 13th December, 1987, has been declared to be void on the
ground under Section 100(1)(b) of the Act. The appellant has been found quality
of the corrupt practices prescribed by sub-Sections (3) and (3A) of Section 123
of the Act at the election, in that he and his agent Bal Thackeray with his
consent appealed for votes on the ground of the returned candidate's religion
and that they promoted or tended to promote feelings of enmity and hatred
between different classes of the citizens of India on the grounds of religion
and community. Consequently, Bal Thackeray, after a notice issued under Section
99 of the Act to him, has also been named for commission of these corrupt
practices. Civil Appeal No. 2836 of 1989 is by the returned candidate Dr. Ramesh
Yeshwant Prabhoo and Civil Appeal No. 2835 of 1989 is by Bal Thackeray against
that judgment.
The
said election was held on 13th December, 1987 and the result was declared on 14th December, 1987, at which Dr. Ramesh Yeshwant Prabhoo
was declared to be duly elected. The charge of these corrupt practices is based
on three public speeches delivered by Bal Thackeray : on 29.11.1987 at Parle
(opposite Shiv Sena Shaka No. 84), on 9.12.1987 at Khar- Danda near Shankar Temple, and on 10.12. 1987 at Jaltaran Maidan, Vile Parle (East).
The public speech given on 9.12.1987 has been held to amount to the corrupt
practice under sub-section (3) of Section 123, while public speeches delivered
on 29.11.1987 and 10.12.1987 have been held to be corrupt practices under
sub-sections (3) and (3A) of Section 123 of the Act. The relevant pleading
relating to these corrupt practices is contained in paras 6 and 8 of the
election petition. Sub-para (a) to (d) of para 6 relate to first speech, sub-para
(e) of para 6 relates to second speech and sub-para (f) of para 6 relates to
third speech.
Para 8
of the election petition then says that returned candidate indulged in the
corrupt practices provided by sub- sections (3) and (3A) of Section 123 of the
Act and, therefore, his election is void.
After
the election petitioner closed his evidence, the returned candidate Dr. Prabhoo
examined only himself in rebuttal. After close of the evidence of the parties
and hearing arguments of both sides, the High Court ordered issue of notice
under Section 99 of the Act to Bal Thackeray who filed an affidavit in reply to
the notice. the election petitioner and his three witnesses were recalled for
cross- examination by counsel for the notice, Bal Thackeray. The notice did not
examine himself on any other witness in rebuttal. The decision of the High
Court is based on this material.
Dr. Prabhoo
was set up as candidate of the Shiv Sena which was then not a recognised
political party for purposes of the Legislative Assembly elections end, therefore,
Dr. Prabhoo's candidature was shown as "Shiv Sena - Independent". Bal
Thackeray is the top leader of Shiv Sena and he participated in the election
campaign of Dr. Prabhoo as the main speaker in his capacity as the leader of Shiv
Sena. The status of Bal Thackeray as the top leader of Shiv Sena has never been
disputed. The gist of election petitioner's case which has been found proved by
the High Court is that the three public speeches of Bal Thackeray in the
election campaign of Dr. Prabhoo were all in very intemperate language and
incendiary in nature which were appeals to the voters to vote for Dr. Prabhoo
because of his religion, i.e., he being a Hindu, and the speeches also promoted
or tended to promote enmity and hatred between different classes of the
citizens of India on the ground of religion. The High Court has held this
charge of the alleged corrupt practices proved against the returned candidate
Dr. Prabhoo and Bal Thackeray. Accordingly, the election of the returned
candidate has been declared to be void on the ground contained in Section
100(1) (b) of the Act, and Bal Thackeray has been named in accordance with
Section 99 of the Act. Hence these appeals by them.
The
averments in para 6 of the election petition alleging the commission of corrupt
practices within the meaning of Section 123 of the Act are in sub-paras (a) to
(f) which are as under:- "(a) The petitioner states that respondent No.1
during his election campaign indulged in corrupt practices by appealing
himself, or by his election agents, or by his supporters with his consent to
vote him and refrain from voting other candidates on the grounds of religion.
The whole tenor of election propaganda of the respondent No.1 was that he is a
candidate of Hindus and Hindus should vote him alone. The details of this
appeal are given in the later part of this petition.
(b)
The respondent No.1, his election agents and his supporters with the consent of
the candidate respondent NO. 1 also indulged in corrupt practice by promoting
and by attempting to promote feelings of enmity and hatred between different
classes of citizens of India on grounds of religion, community
and language. The examples of this corrupt practice are also listed in the
later part of this petition.
(c)
The campaign for the election of respondent No.1 was headed by Shri Balasaheb
Thackeray, the leader of the Shiv Sena, who had put up respondent No. 1 in this
election. Shri Thackeray addressed several meetings and also issued press
statements during the course of the election in question. Out of these meetings
Shri Thackeray spoke on 29.11.1987 at a meeting held at Shiv Sena Shaka no 84
at Vile Parle, which took place from 9 P.M. to 12 midnight.
In
this meeting Shri Balasaheb Thackeray, Suryakant Mahadik Pramod Navalkar, Ramesh
Mehta, Madhukar Sarpotdar and the candidate respondent No. 1 Dr. ramesh Prabhoo
himself were also present. Shri Thackeray uttered the following words during
this meeting. The words are quoted in Marathi and they are followed by the
English translation.
Translation:
"We are fighting this election for the protection of Hinduism.
Therefore,
we do not care for the votes of the Muslims. This country belongs to Hindus and
will remain so." Since the petitioner was all throughout in the
constituency for his election campaign, he came to know about the said meeting
having been held and attended by Shri Bal Thackeray.
Subsequently,
he also came to know about the speeches made in the meeting from his friends
and active workers of the Party. The petitioner has reliably learnt that the
police reporters also attended the meeting and they have taken down the report
of the speeches made.
The
petitioner craves leave to call for the record of the speeches from the Police
Department and to prove the point by examining the police reporters who have
taken down the speeches. The petitioner craves leave to rely upon the said
police report in the custody of the Police. A report regarding the said meeting
and the speeches appeared in the newspaper "Mumbai Sakal" (A Marathi
daily) dated 1.12.1987 with the photographs under the title "Hindu Dev- devtavareel
Teeka Sahan Karnar Nahi Thackeray" (We will not tolerate the criticism of
Hindu gods and goddesses - Thackeray). From the said photograph it is clear
that respondent No. 1 was also present in the said meeting. Thus all the
utterances regarding the speeches made by Bal Thackeray to appeal to voters in
the name of Hindu religion are with the consent and connivance of the first
respondent. The same meeting was also reported in `Sanj Tarun Bharat' (an
evening daily) dated 30.11.87 with the photograph of Shri Thackeray, respondent
NO. 1 and others on the dias. The said photograph further shows that a banner
was put up on the dias which reads as under:- "Garva Say Kaho (OM) Ham
Hindu Hai" The said meeting was also reported in `Sandhyakal', another
Marathi daily, on 1.12.87. Hereto annexed and marked Exhibit `B' and `B-1' is
the original report appearing in `Sanj Tarun Bharat' with English translation
and hereto annexed and marked Exhibit `C' and `C-1' is the said report
appearing in `Sandhyakal' with English translation.
(d)
The petitioner says that a report regarding the said meeting also appeared in
the `Urdu Times', an Urdu daily published from Bombay in its issue dated 1.12.87. The petitioner does not know
how to read and write Urdu.
However,
he got the said report translated. In the said `Urdu Times' the report appeared
with the title `Shiv Sena ko Musalmano ke votoki zarurat nahin hai' (Shiv Sena
did not need the votes of Muslims). A true English translation of the said news
item is annexed hereto and marked Exhibit `D' and `D-1' with a zerox copy of
the report in Urdu.
(e)
Again on 9.12.87 there was another election meeting which took place from 9 a.m. to about 12 midnight at Khar-Danda,
near Shankar Temple. This meeting was addressed by Shri Bal Thackeray,
respondent No. 1, Harish Chandra Dattaji Salvi (a Shiv Sena leader) and Shambhoo
Maharaj, a religious leader from Gujarat. In the said meeting Shri Bal Thackeray, while addressing the audience
stated as under :- Translation: "Hinduism will triumph in this election
and we must become hon'ble recipients of this victory to ward off the danger on
Hinduism, elect Ramesh Prabhoo to join with Chhagan Bhujbal who is already
there. You will find Hindu temples underneath if all the mosques are dug out.
Anybody who stands against the Hindus should be showed or worshipped with
shoes. A candidate by name Prabhoo should be led to victory in the name of
religion." The petitioner says that the proceedings of the said meeting
were recorded by the police. Newspaper reports regarding the meeting also
appeared. The petitioner will crave leave to and rely upon the records of the
police and also the press report giving the version of the said meeting
appearing in various newspapers.
(f)
The petitioner says that on 10.12.87 a meeting was held from 9 p.m. to about 12
midnight at Vile Parle (East) at Shahaji Raje Marg. This was addressed by S/Shri
Bal Thackeray, Shambhoo Maharaj, Ramesh Mehta, Rishi Kapoor, Jitendra Madhukar
Joshi and Ramesh Prabhoo, respondent No. 1. In this meeting Shri Thackeray
uttered the following words while addressing the meeting :- Translation :
"We have come with the ideology of Hinduism. Shiv Sena will implement this
ideology. Though this country belongs to Hindus, Ram and Krishna are insulted. (They) valued the
Muslim votes more than your votes; we do not want the Muslim votes. A snake
like Shahabuddin is sitting in the Janta Party, man like Nihal Ahmed is also in
Janata Party. So the residents of Vile Parle should bury this party (Janata
Party)." The above utterances in these three meetings are the examples of
promoting the feelings of enmity between different classes of citizens of India. the sole purpose in doing so and
making the appeal was to canvas votes in favour of the first respondent on the
ground of religion and make it appear to the voters that respondent No. 1 was
the only person who could represent the Hindu community. The effect of the said
speeches was to promote the feelings of enmity and hatred between Hindus and
non-Hindus on the ground of religion, race, caste, community etc. As such the
petitioner and most of the respondents from 1 to 13 are Hindus, having full
faith in the Hindu religion. The main ground of objection on the way of
canvassing for votes by respondent No. 1 and his supporters was to bring the
element of religion into politics endangering the very foundation of the
Constitution of India, viz. secularism.
The
petitioner honestly believes that it is one thing to follow one's own religion
according to his own conviction and another thing to appeal to the voters to
vote in the name of the religion." Reliance was placed by the election
petitioner on certain news items wherein the public speeches were published and
also on certain reports alleged to have been made by some police officers who
reported these making of the speeches raising some controversy relating to
sufficiency of pleadings and the use of material for proving the contents of
the speeches in excess of the exact words pleaded in the election petition.
Details of this controversy would be mentioned later while considering that
point. However, it may be mentioned that the extent to which there is specific
pleading and the returned candidate himself admitted the contents of the public
speeches can safely be considered subject to the objection raised of the
alleged legal infirmities including want of a valid notice under Section 99 of
the Act to the notice Bal Thackeray.
More
details of the evidence would be mentioned at the appropriate stage.
Broadly
stated, the contentions of Shri Ram Jethmalani, learned counsel for the
appellants in these appeals are :
(1)
Sub-sections (3) and (3A) of Section 123 of the Act are constitutionally
invalid being violative of guarantee of free speech in Article 19(1)(a) of the
Constitution;
(2) To
save both these provisions from constitutional invalidity, they must be read as
reasonable restrictions in the interest of public order to get the protection
of Article 19(2) of the Constitution. In other words, unless the speech is
prejudicial to the maintenance of public order, it cannot fall within the net
of either sub-section (3) or sub-section (3A) of Section 123 of the Act;
(3) In
sub-section (3) of Section 123, the emphasis is on the word "his"10
preceding the word "religion" and its significance must be understood
in the light of the restricted scope of the provision indicated by the Union
Law Minister during the Parliamentary debates to explain the object of introduction
of the word "his" in the provision. In other words, only a direct
appeal for votes on the ground of "his" religion subject to its
tendency to prejudice the maintenance of Public order is contended to be the
limited scope of sub-section (3) of Section 123;
(4) A
speech in which there be a reference to religion but no direct appeal for votes
on the ground of his religion, does not come within the net of sub-section (3)
of Section 123;
(5)
The public speeches in question did not amount to appeal for votes on the
ground of his religion and the substance and main thrust thereof was "Hindutava"
which means the Indian culture and not merely the Hindu religion;
(6)
The public speeches criticized the anti-secular stance of the Congress Party in
practising discrimination against Hindus and giving undue favour to the
minorities which is not an appeal for votes on the ground of Hindu religion;
(7) On
behalf of the notice Bal Thackeray, it was further contended that there was no
compliance of the requirements of Section 99 of the Act, inasmuch as the notice
contemplated by the provision was not given and the notice was never informed
of the precise charge against him. It was submitted that the notice given was
not in conformity with the law and particulars required to be given by the
court were never given, the High Court having merely asked the petitioner to
indicate the particulars of the charge of the corrupt practice; and
(8)
that the pleadings in the election petition are deficient being devoid of the
material particulars and, therefore, the material brought in at the stage of
evidence and relied on to prove the charge of corrupt practice has to be
excluded from consideration.
Learned
counsel for the appellant also made the grievance that the High Court had
decided the election petition mainly on the basis of the general impressions
and vague assertions made by the election petitioner instead of confining the
decision to the precise pleadings and the legally admissible evidence examined
in the light of the true meaning and scope of sub-sections (3) and (3A) of
Section 123 of the Act.
In
reply. Shri Ashok Desai, learned counsel for the respondent refuted these
contentions. He submitted that the question of constitutional validity of the
provisions is no longer res integra being concluded by the decision of the
Constitution Bench in Jamuna Prasad Mukhariya and Others vs. Lachhi Ram and
Others, 1955 (1) SCR 608. Alternatively, he contended that the freedom of
speech guaranteed in the Constitution does not extend to giving speeches of the
kind given by Bal Thackeray and, at any rate, these provisions impose
reasonable restrictions on the freedom of speech which are saved by Article
19(2) of the Constitution. Shri Desai also submitted that the substance and
main thrust of the speech, not merely the form, has to be seen in its context
to determine if it amounts to an appeal for votes on the ground of `hiss'
religion, and such appeal need not necessarily be only direct. Learned counsel
submitted that each one of the speeches in question was highly incendiary
containing appeal to vote for Dr. Ramesh Prabhoo because he is a Hindu; and it
also tended to promote enmity and hatred between Hindus and Muslims. According
to him, each one of the speech amounted to the corrupt practice both under sub-
sections (3) and (3A) of Section 123 of the Act.
Meaning
of sub-sections (3) and (3A) of Section 123 of the R.P. Act. Sub-sections (3)
and (3A) of Section 123 of the R.P. Act are as under:-
"123.
Corrupt practices. - The following shall be deemed to be corrupt practices for
the purposes of this Act :- xxx xxx xxx (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 of 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:
Provided
that no symbol allotted under this Act to a candidate shall be deemed to be a
religious symbol or a national symbol for the purposes of this clause.
(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.
xxx xxx
xxx The submission of Shri Ram Jethmalani, learned counsel for the appellants
is that the appeal to vote or refrain from voting for any person on the ground
of `his' religion, etc. for the furtherance of the prospects of the election of
that candidate or for prejudicially affecting the election of any candidate,
means a direct appeal to vote or refrain from voting on the ground of `his'
religion, etc.; and the appeal must also be provocative in nature to adversely
affect public order. The further element of adverse effect on public order, it
is urged, is implicit in the provision to save it from constitutional
invalidity, which argument is considered separately. Shri Jethmalani laid
emphasis on the word `his' which was inserted by Act 40 of 1961 w.e.f. 20.9.1961
when the existing sub-section (3) was substituted for the old sub-section (3). Shri
Jethmalani contended that the object of insertion of the word `his' in the
newly substituted sub-section (3) was to restrict the meaning of the provision
and confine it only to a direct appeal based on `his' religion. Learned counsel
placed strong reliance on the statement of the Law Minister during the debates
in the Parliament to support this submission. In reply, Shri Ashok Desai,
learned counsel for the respondent contended that the word `his' no doubt has
significance, but its use does not confine the meaning of sub-section (3) only to
a direct appeal on the ground of `his' religion, etc. and extends to an appeal
of which the main thrust in the context is on the religion of the candidate. Shri
Desai submitted that an unduly restricted meaning cannot be given to
sub-section (3) since the object of the provision is to prohibit appeal for
votes during the election on the ground of religion of the candidate.
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 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 prejudicially 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).
The
argument that such an appeal must be a direct appeal, such as `Vote for A
because he is a Hindu' or `Do not vote for B because he is a Christian', and
that no other appeal leading to that conclusion is forbidden, does not appeal
to reason. What is forbidden by sub-section (3) is an appeal of this kind and,
therefore, any appeal which amounts to or leads to this inference must
necessarily come within the prohibition in sub-section (3). Whether a
particular appeal is of this kind, is a question of fact in each case.
Where
the words used in the appeal are clear and unambiguous amounting to a direct
appeal, the exercise of construing the speech is not needed. However, where a
reasonable construction of the appeal leads to that conclusion, the result must
be the same. The substance of the speech and the manner in which it is meant to
be understood by the audience determines its nature, and not the camouflage by
an artistic use of the language. For understanding the meaning and effect of
the speech, the context has to be found in the speech itself and not outside it
with reference to any other background unless the speech itself imports any
earlier fact in the context of that speech. the speech has also not to be
construed in the abstract or in the manner in which it would be construed after
an academic debate. Care must be taken to remember that the public speeches
during election campaign ordinarily are addressed to audience comprised of
common men end, therefore, the manner in which it would be understood by such
an audience has to be kept in view.
We are
unable to accept the submission of Shri Jethmalani that a further element of
prejudicial effect on public order, is implicit in sub-section (3). We do not
find anything in the language of the provision to read this further element
into it. Sub-section (3) in substance forbids appeal for votes for any
candidate on the ground of `his' religion and appeal to refrain from voting for
any other candidate on the ground of the religion of that other candidate.
Obviously the purpose of enacting the provision is to ensure that no candidate
at an election gets votes only because of his religion and no candidate is
denied any votes on the ground of his religion. This is in keeping with the secular
character of the Indian polity and rejection of the scheme of separate
electorates based on religion in our constitutional scheme. An appeal of the
kind forbidden by sub-section (3) based on the religion of a candidate, need
not necessarily be prejudicial to public order and, therefore, the further
element of likelihood of prejudice to public order is unnecessary, on account
of which it is not implicit in the provision. This, according to us, is the
meaning and the correct construction of sub-section (3). The question of
constitutional validity of the provision on this meaning is considered later.
Reference
may now be made to the Parliamentary debates in which the reason ascribed by
the Law Minister Shri A.K. Sen for adding the word `his' in sub-section (3) and
its purpose was stated, thus - "Shri A.K. Sen: I added the word `his' in
the Select Committee in order to make quite clear as to what was the mischief
which was sought to be prevented under this provision." xxx xxx xxx "Shri
A.K. Sen: The apprehension was expressed if one's right was going to be curbed
by this section. If such a right was going to be curbed by the section, I would
have been against such an amendment, because after all, it is the right of a
person to propagate his own language, his own particular culture and various
other matters. But that does not mean vilifying another language or creating
enmity between communities." xxx xxx xxx "Shri A.K. Sen: .....
I am
pained to hear Shri Hynniewta giving expression to an apprehension, which to me
seems entirely baseless.
That
apprehension is to the effect that clause 23 will deprive him of his right to
propagate his language or preserve his language, which cannot be taken away
from him as he himself has quoted the relevant article of the Constitution. If
that right is taken away by the Bill, it will be struck down as contravening
article 19 and the section will not be given effect to by any court.
Fortunately,
this country is still governed by the rule of law and the courts of law have
the last say in these matters." xxx xxx xxx "Shri A.K. Sen: That is a
different matter. With due respect to the hon.
Member,
he has not really appreciated the rationale of the Supreme Court's decision.
With regard to election matters, Parliament is free to enact such legislation
as it thinks best and Chapter III does not come in. That is the decision of the
Supreme Court. But in the quais of framing an electoral law, no fundamental
right of the citizen can be taken away. That is what I am saying. The right to
preserve one's language cannot be taken away by an election law. That is as
clear as daylight." xxx xxx xxx "Shri A.K. Sen: You cannot make it an
election issue if you say, `Do not vote for him. He is a Bengali' or `Do not
vote for him. He is a Khasi'. I made it unequivocally clear that it is the
purpose and design of this House and of the country to ensure that. No man
shall appeal only because he speaks a particular language and should get voted
for that reason; or no man shall appeal against a particular person to the
electorate solely because that opponent of his speaks a particular
language." xxx xxx xxx "Shri A.K. Sen: They are entitled to do so.
The Constitution gives them the right to do so. But we are on a very narrow
point, whether we shall extend the right to a person, to a voter, to say: vote
for me because I speak Hindi, I speak Gharwali, or I speak Nepali or I speak Khasi;
or in the alternative, do not vote for my opponent because he is a man who
speaks this particular language, his own language. It is on that sole narrow
point that the prohibition is sought to be made.
.....
But we are not here on the aesthetics of language or the philosophy of
language; nor are we here to debate the fundamental rights of a citizen to
preserve his own language and culture.
Fortunately,
that is guaranteed to every man and woman in this country as it not elsewhere.
...." xxx xxx xxx "Shri A.K. Sen: .....
But
the problem is, are we going to allow a man to go to the electorate and ask for
votes because he happens to speak a particular language or ask the electorate
to refrain from voting for a particular person merely on the ground of his
speaking a particular language or following a particular religion and so on? IF
not, we have to support this. The preservation of the minority's rights and so
on is a different and a wider question." xxx xxx xxx "Shri A.K. Sen:
..... But, if you say that Bengali language in this area is being suppressed or
the schools are being closed as Shri Hynniewta was saying, because they bore a
particular name, then, you are speaking not only to fight in an election but
you are also really seeking to protect you fundamental rights, to preserve you
own language and culture. That is a different matter.
But,
if you say, `I am a Bengali, you are all Bengalis, vote for me', or `I am an
Assamese and so vote for me because you are Assamese speaking men'.
I
think, the entire House will deplore that as a hopeless form of election
propaganda. And, no progressive party will run an election on that line.
Similarly,
on the ground of religion. In the olden days, what speeches we used to hear in
Muslim League gatherings ! They were purely appeals on the ground of religion.
So, the issue is too narrow and not a wide issue in which the life and death of
minorities are involved as Shri Hynniewta sought to make out. It is not at all
in question. ...." (emphasis supplied) The clarification given in the
speech of the Law Minister clearly shows that a speech for the protection of
fundamental rights, preservation of own language, religion and culture, etc.
are not forbidden by sub-section (3) of Section 123, and the limit is narrow to
the extent indicated.
It
cannot be doubted that a speech with a secular stance alleging discrimination
against any particular religion and promising removal of the imbalance cannot
be treated as an appeal on the ground of religion as its thrust is for
promoting secularism. Instances given in the speech of discrimination against
any religion causing the imbalance in the professed goal of secularism, the
allegation being against any individual or any political party, cannot be
called an appeal on the ground of religion forbidden by sub- section (3). In
other words, mention of religion as such in an election speech is not forbidden
by sub-section (3) so long as it does not amount to an appeal to vote for a
candidate on the ground of his religion or to refrain from voting for any other
candidate on the ground of his religion. When it is said that politics and
religion do not mix, it merely means that the religion of a candidate cannot be
used for gaining political mileage by seeking votes on the ground of the
candidate's religion or alienating the electorate against another candidate on
the ground of the other candidate's religion. It also means that the state has
no religion and the State practises the policy of neutrality in the matter of
religion.
In Dr.
M. Ismail Faruqui and Others etc. etc. vs. Union of India and Others etc.,
(1994) 6 SCC 360 (Ayodhya case), the Constitution Bench, after a detailed discussion,
summarised the true concept of secularism under the Indian Constitution as under
:- "It is clear from the constitutional scheme that it guarantees equality
in the matter of religion to all individuals and groups irrespective of their
faith emphasising that there is no religion of the State itself. The Preamble
of the Constitution read in particular with Articles 25 to 28 emphasises this
aspect and indicates that it is in this manner the concept of secularism
embodied in the constitutional scheme as a creed adopted by the Indian people
has to be understood while examining the constitutional validity of any
legislation on the touchstone of the Constitution. The concept of secularism is
one facet of the right to equality woven as the central golden thread in the
fabric depicting the pattern of the scheme in our Constitution." (at page
402) It cannot be doubted that an election speech made in conformity with the
fundamental right to freedom of religion guaranteed under Articles 25 to 30 of
the Constitution, cannot be treated as anti-secular to be prohibited by sub-
section (3) of Section 123, unless it falls within the narrow net of the
prohibition indicated earlier. It is obvious that a speech referring to
religion during election campaign with a secular stance in conformity with the
fundamental right to freedom of religion can be made without being hit by the
prohibition contained in sub-section (3), if it does not contain an appeal to
vote for any candidate because of his religion or to refrain from voting for
any candidate because of his religion. When it is said that politics and
religion do not mix, it obviously does not mean that even such permissible
political speeches are forbidden.
This
is the meaning and true scope of sub-section (3) of Section 123 of the Act.
We
would now consider the meaning of Sub-section (3A) of Section 123. This
sub-section also was inserted along with the substituted sub-section (3) by Act
40 of 1961 w.e.f. 20.9.1961. The meaning of this sub-section is not much in
controversy. Sub-section (3A) is similar to section 153-A of the Indian Penal
Code. In sub-section (3A), the expression used is "the promotion of, or
attempt to promote, feelings of enmity or hatred" as against the
expression "Whoever .... promotes or attempts to promote .....
disharmony
or feelings of enmity, hatred or ill-will ...." in Section 153-A, I.P.C.
The expression `feelings of enmity or hatred' is common in both the provisions
but the additional words in Section 153-A, I.P.C. are `disharmony .... or
ill-will'. The difference in the plain language of the two provisions indicates
that mere promotion of disharmony or ill-will between different groups of
people is an offence under Section 153-A, I.P.C. while under sub- section (3A)
of Section 123 of the R.P. Act, it is only the promotion of or attempt to
promote feelings of enmity or hatred, which are stronger words, that is
forbidden in the election campaign.
The
provision is made with the object of curbing the tendency to promote or attempt
to promote communal, linguistic or any other factional enmity or hatred to
prevent the divisive tendencies. The provision in the I.P.C. as well as in the
R.P. Act for this purpose was made by amendment at the same time. The amendment
in the R.P. Act followed amendments made in the Indian Penal Code to this
effect in a bid to curb any tendency to resort to divisive means to achieve
success at the polls on the ground of religion or narrow communal or linguistic
affiliations. Any such attempt during the election is viewed with disfavour
under the law and is made a corrupt practice under sub- section (3A) of Section
123.
Shri Jethmalani
is right that in sub-section (3A), the element of prejudicial effect on public
order is implicit.
Such
divisive tendencies promoting enmity or hatred between different classes of
citizens of India tend to create public unrest and
disturb public order. This is a logical inference to draw on proof of the
constituent parts of sub-section (3A). The meaning of sub-section (3A) is not
seriously disputed between the parties and, therefore, it does not require any
further discussion. However, whether the act complained of falls within the net
of sub-section (3A) is a question of fact in each case to be decided on the
basis of the evidence led to prove the alleged act.
Brijmohan
Ramdass Mehta & Ors., 1975 (Suppl.) SCR 281, lends assurance to the
correctness of the construction made by us of these provisions. The returned
candidate Bukhari was the candidate of Muslim League while the defeated
candidate Shauket Chagla was the Congress candidate at the election.
Both
were Muslims. The returned candidate Bukhari in his appeal to the voters said
that Chagla was not true to his religion while he himself was a true Muslim.
The clear implication of the appeal was that Chagla was not true to his
religion whereas Bukhari was, and, therefore, the voters should prefer Bukhari.
In short, the appeal for votes was made on the ground that Bukhari was a
staunch believer of the Muslim religion as against Chagla who did not. It was this
clear appeal based on the ground of the candidate's religion which was held to
constitute the corrupt practices defined by sub-sections (3) and (3A) of
Section 123 of the R.P. Act. For this purpose, the true ambit and scope of
these provisions was considered and indicated as under:- "We propose to
indicate, at this stage, what mischief the provisions were designed to most
illuminating and certain way of correctly construing these statutory
provisions. We cannot do so without adverting to the historical, political, and
Constitutional background of our democratic set up, such provisions are
necessary in you 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.
26 It
seems to us that Section 123, sub s. (2), (3) and (3A) were enacted 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 religions, 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.
xxx xxx
xxx 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.
xxx xxx
xxx ....In other words, Bukhari, apart from making a direct attack on the
alleged religious beliefs and practices of the Chagla family, clearly conveyed
to the hearers that Chagla was an unfit person, on the ground of his mixed
religious faith and practices, to represent 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.
xxx xxx
xxx 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 Jawharlal 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 or
professedly religious grounds directed against a candidate at an election may
be permitted in 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.
xxx xxx
xxx 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." (emphasis
supplied) The meaning of sub-sections (3) and (3A) of Section 123 was
understood and indicated in this decision, in the above manner.
Constitutional
Validity of sub-sections (3) and (3A) of Section 123 The next question now
relates to the constitutional validity of these provisions on the meaning
ascribed to them.
Sub-section
(3A) of Section 123 is undoubtedly a provision made in the interests of public
order or incitement to an offence because the promotion or attempt to promote
feelings of enmity or hatred between different classes of the citizens of India
on any of the grounds specified therein, apart from creating divisive tendency,
would also be prejudicial to the maintenance of public order and may amount to
incitement to commission of offences. The freedom of speech and expression
guaranteed to all citizens under Article 19(1)(a), which is the basis of the
constitutional challenge to this provision, is subject to clause (2) of Article
19 which permits the making of any law imposing reasonable restrictions on the
exercise of this right in the interests of public order or incitement to an
offence. For this reason, no further attempt was made to press the argument of
challenge to the constitutional validity of sub-section (3A) on the
construction we have made of that provision.
The
question now is of the constitutional validity of sub-section (3) of Section
123. We have already rejected the argument that the element of prejudicial
effect on public order is implicit also in sub-section (3) as it is in sub-
section (3A). According to Shri Ram Jethmalani, unless this element also is
read into sub-section (3), it is violative of Article 19(1)(a) inasmuch as
clause (2) of Article 19 does not save its validity under any of the other
heads specified therein.
We
have construed sub-section (3) of Section 123 as a restriction only to the
extent that votes cannot be sought for a candidate on the ground of his
religion, etc. and similarly there can be no appeal to refrain from voting for
any person on the same ground. In other words, an appeal to vote for a
candidate or not to vote for him on the ground of his religion, etc. is the
restriction imposed by sub-section (3). This restriction is in the law enacted
to provide for the conduct of elections, the qualifications and
disqualifications for membership of the Houses, the corrupt practices and other
offences at or in connection with such elections. The right to contest the
election is given by the statute subject to the conditions prescribed therein.
The restriction is limited only to the appeal for votes to a candidate during
the election period and not to the freedom of speech and expression in general
or the freedom to profess, practise and propagate religion unconnected with the
election campaign.
It is
true, as argued by Shri Jethmalani, that the freedom of speech and expression
guaranteed to all citizens under Article 19(1)(a) is absolute subject to the
reasonable restrictions imposed by any law saved by clause (2) of Article 19,
under one of the heads specified therein. The heads specified in clause (2) of
Article 19 are, therefore, several and they are intended to cover the entire
area within which the absolute freedom to say anything which the speaker may
alike would not extend, in keeping with the standards of a civilized society,
the corresponding rights in others in an orderly society, and the
constitutional scheme.
The
expression " In the interests of" used in clause (2) of Article 19
indicates a wide amplitude of the permissible law which can be enacted to
provide for reasonable restrictions on the exercise of this right under one of
the heads specified therein, in conformity with the constitutional scheme. Two
of the heads mentioned are :
decency
or morality. Thus any law which imposes reasonable restrictions on the exercise
of this right in the interests of decency or morality is also saved by clause
(2) of Article 19. Shri Jethmalani contended that the words `decency or
morality' relate to sexual morality alone. In view of the expression "in
the interests of" and the context of election campaign for a free and fair
poll, the right to contest the election being statutory and subject to the
provisions of the statute, the words `decency or morality' do not require a
narrow or pedantic meaning to be given to these words. the dictionary meaning
of `decency' is "correct and tasteful standards of behaviour as generally
accepted;
conformity
with current standards of behaviour or propriety;
avoidance
of obscenity; and the requirements of correct behaviour"
(The Oxford Encyclopedic English Dictionary);
"conformity
to the prevailing standards of propriety, morality, modesty, etc.: and the
quality of being decent" (Collins English Dictionary).
Thus,
the ordinary dictionary meaning of `decency' indicates that the action must be
in conformity with the current standards of behaviour or propriety, etc. In a
secular polity, the requirement of correct behaviour or propriety is that an
appeal for votes should not be made on the ground of the candidate's religion
which by itself is no index of the suitability of a candidate for membership of
the House. In Knuller (Publishing, Printing and Promotions) (2) All ER 898, the
meaning of `indecency' was indicated as under:
"....Indecency
is not confined to sexual indecency; indeed it is difficult to find any limit
short of saying that it includes anything which an ordinary decent man or woman
would find to be shocking, disgusting and revolting...." (at page 905)
Thus, seeking votes at an election on the ground of the candidate's religion in
a secular State, is against the norms of decency and propriety of the society.
In our
opinion, the saving in clause (2) of Article 19 permits the imposition of
reasonable restrictions on the exercise of the right conferred by Article 19(1)(a)
by making any law in the interests of decency or morality; and sub-section (3)
of Section 123 of the R.P. Act, as construed by us, has the protection of
clause (2) of Article 19 under the head `decency' therein. This conclusion is
reached by us even if it is assumed that the provision is not saved merely as a
condition subject to which the statutory right of contesting an election is
available to the candidate. The fact that the scheme of separate electorates
was rejected in framing the Constitution and secularism is the creed adopted in
the constitutional scheme, are relevant considerations to treat this as a
reasonable restriction on the freedom of speech and expression, for maintaining
the standard of behaviour required in conformity with the decency and propriety
of the societal norms. Viewed at in any manner, sub-section (3) of Section 123
cannot be held to be unconstitutional. This view is also in accord with the
nature of right to contest an election, as understood in Jamuna Prasad Mukhariya
and Others vs. Lachhi Ram and Others, 1955 (1) SCR 608.
The
argument assailing the constitutional validity of sub-sections (3) and/or (3A)
of Section 123 is rejected.
Meaning
of `Hindutva' and `Hinduism' The next contention relates to the meaning of `Hindutva'
and `Hinduism' and the effect of the use of these expressions in the election
speeches.
We
have already indicated the meaning of sub-section (3) of Section 123 of the
R.P. Act and the limit of its operation. It may be said straightaway that any
speech wherein these expressions are used, irrespective of their meaning,
cannot by itself fall within the ambit of sub- section (3) of Section 123,
unless the speech can be construed as an appeal to vote for a candidate on the
ground that he is a Hindu or to refrain from voting for a candidate on the
ground of his religion, i.e., he not being a Hindu.
We
have also indicated that mere reference to any religion in an election speech
does not bring it within the net of sub-section (3) and/or sub-section (3A) of
Section 123, since reference can be made to any religion in the context of
secularism or to criticise any political party for practising discrimination
against any religious group or generally for preservation of the Indian
culture. In short, mere use of the word `Hindutva' or `Hinduism' or mention of
any other religion in an election speech does not bring it within the net of
sub-section (3) and/or sub-section (3A) of Section 123, unless the further
elements indicated are also present in that speech. It is also necessary to see
the meaning and purport of the speech and the manner in which it was likely to
be understood by the audience to which the speech was addressed. These words
are not to be construed in the abstract, when used in an election speech.
Both
sides referred copiously to the meaning of the word `Hindutva' and `Hinduism'
with reference to several writings. Shri Jethmalani referred to them for the
purpose of indicating the several meanings of these words and to emphasise that
the word `HIndutva' relates to Indian culture based on the geographical
division known as Hindustan, i.e., India. On the other hand, Shri Ashok
Desai emphasised that the term `Hindutva' used in election speeches is an
emphasis on Hindu religion bearing no relation to the fact that India is also
known as Hindustan, and the term can relate to Indian culture.
The
Constitution Bench in Sastri Yagnapurushadji and Others vs. Muldas Bhudardas Vaishya
and Another, 1966 (3) SCR 242 held thus :
"Who
are Hindus and what are the broad features of Hindu religion, that must be the
first part of our enquiry in dealing with the present controversy between the
parties. The historical and etymological genesis of the word `Hindu" has
given rise to a controversy amongst indologists; but the view generally
accepted by scholars appears to be that the word "Hindu" has given
rise to a controversy amongst indologists; but the view generally accepted by
scholars appears to be that the word "Hindu" is derived from the
river Sindhu otherwise known as Indus which flows from the Punjab. "that
part of the great Aryan race", says Monier Williams, "which
immigrated from Central
Asia, through the
mountain passes into India, settled first in the districts
near the river Sindhu (now called the Indus).
The Persians pronounced this word Hindu and named their Aryan brethren Hindus.
The Greeks, who probably gained their first ideas of India from the Persians, dropped the hard
aspirate, and called the Hindus "Indoi" ("Hinduism" by monier
Williams, p.1).
The
Encyclopedia of Religion and Ethics, Vol. VI, has described
"Hinduism" as the title applied to that form of religion which
prevails among the vast majority of the present population of the Indian Empire
(p.686). As Dr. Radhakrishnan has observed;
"The
Hindu civilization is so called, since its original founders or earliest
followers occupied the territory drained by the Sindhu (the Indus) river system corresponding to the North West Frontier Province and the PUnjab. This is recorded in the Rig Veda,
the oldest of the Vedas, the Hindu scriptures which give their name to this
period Indian history. The people on the Indian side of the SIndhu we re called
Hindu by the Persian and the later western invaders" ("The Hindu View
of Life" by Dr. Radhakrishnan, p.12). That is the genesis of the word
"Hindu".
When
we think of the Hindu religion. We find it difficult, if not impossible, to
define Hindu religion or even adequately describe it. Unlike other religions in
the world, the Hindu religion does not claim any one prophet;
it
does not worship any one God; it does not subscribe to any one dogma; it does
not believe in any one philosophic concept; it does not follow any one set of
religious rites or performances; in fact, it does not appear to satisfy the
narrow traditional features of any religion or creed. It may broadly be
described as a way of life and nothing more.
....The
term `Hindu', according to Dr. Radhakrishnan, had originally a territorial and
not a credal significance. It implied residence in a well-defined geographical
area.
Aboriginal
tribes, savage and half- civilized people, the cultured Dravidians and the
Vedic Aryans were all Hindus as they were the sons of the same mother. The
Hindu thinkers reckoned with the striking fact that the men and women dwelling
in India belonged to different communities, worshipped different gods, and practised
different rites (Kurma Purana) (Ibid p. 12).
Monier
Williams has observed that "it must be borne in mind that Hinduism is far
more than a mere form of theism resting on Brahmanism. It presents for our
investigation a complex congeries of creeds and doctrines which is its gradual
accumulation may be compared to the gathering together of the might volume of
the Ganges, swollen by a continual influx of tributary rivers and rivulets,
spreading itself over an everincreasing area of country and finally resolving
itself into an intricate Delta of tortuous steams and jungly marshes.... The
Hindu religion is a reflection of the composite character of the Hindus, who
are not one people but many. It is based on the idea of universal receptivity.
It has ever aimed at accommodating itself to circumstances, and has carried on
the process of adaptation through more than three thousand years. It has first
borne with and then, so to speak, swallowed, digested, and assimilated
something from all creeds". ("Religious Thought & Life in India" by Monier Williams, p. 57).
We
have already indicated that the usual tests which can be applied in relation to
any recognised religion or religious creed in the world turn out to be
inadequate in dealing with the problem of Hindu religion. Normally, any recognised
religion or religious creed subscribes to a body of set philosophic concepts
and theological beliefs. Does this test apply to the Hindu religion ? In
answering this question, we would base ourselves mainly on the exposition of
the problem by Dr. Radhakrishnan in his work on Indian philosophy. ("Indian
Philosophy" by Dr. Radhakrishnan, Vol. I, pp. 22-23). Unlike other
countries, India can claim that philosophy in
ancient India was not an auxiliary to any other
science or art, but always held a prominent position of independence. .....
"In all the fleeting centuries of history', says Dr. Radhakrishnan,
"in all the vicissitudes through which India has passed, a certain marked identity is visible. It has held fast to
certain psychological traits which constitute its special heritage, and they
will be the characteristic marks of the Indian people so long as they are privileged
to have a separate existence". The history of Indian thought emphatically
brings out the fact that the development of Hindu religion has always been
inspired by an endless quest of the mind for truth based on the consciousness
that truth has many facets. Truth is one, but wise men describe it differently.
(..) The Indian mind has, consistently through the ages, been exercised over
the problem of the nature of godhead the problem that faces the spirit at the
end of life, and the interrelation between the individual and the universal
soul.
"If
we can abstract from the variety of opinion", says Dr. Radhakrishnan,
"and observe the general spirit of Indian thought, we shall find that it
has a disposition to interpret life and nature in the way of monistic idealism,
though this tendency is so plastic, living and manifold that it takes many
forms and expresses itself in even mutually hostile teachings". (..) .....
Naturally enough, it was realised by Hindu religion from the very beginning of
its career that truth was many-sided and different views contained different
aspects of truth which no one could fully express. This knowledge inevitably
bred a spirit of tolerance and willingness to under-stand and appreciate the
opponent's point of view.
That
is how "the several views set forth in India in regard to the vital philosophic concepts are considered to be the
branches of the self-same tree.
The
short cuts and blind alleys are somehow reconciled with the main road of
advance to the truth." (..) When we consider this broad weep of the Hindu
philosophic concepts, it would be realised that under Hindu philosophy, there
is no scope for ex-communicating any notion or principle as heretical and
rejecting it as such.
xxx xxx
xxx The development of Hindu religion and philosophy shows that from time to
time saints and religious reformers attempted to remove from the Hindu thought
and practices elements of corruption and superstition and that led to the
formation of different sects.
Buddha
started Buddhism; Mahavir founded Jainism; Basava became the founder of Lingayat
religion, Dnyaneshwar and Tukaram initiated the Varakari Cult;
Guru nanak
inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bhakti
cult; and as a result of the teachings of Ramakrishna and Vivekananda, Hindu
religion flowered into its most attractive, progressive and dynamic form. If we
study the teachings of these saints and religious reformers, we would notice an
amount of divergence in their respective views;
but
underneath that divergence, there is a kind of subtle indescribable unity which
keeps them within the sweep of the broad and progressive Hindu religion.
xxx xxx
xxx .... It is somewhat remarkable that this broad sweep of Hindu religion has
been eloquently described by Toynbee.
Says
Toynbee: "When we pass from the plane of social practice to the plane of
intellectual outlook, Hinduism too comes out well by comparison with the
religions and ideologies of the South- West Asian group. In contrast to these
Hinduism has the same outlook as the pre-Christian and pre-Muslim religions and
philosophies of the Western half of the old world. Like them, Hinduism takes it
for granted that there is more than one valid approach to truth and to
salvation and that these different approaches are not only compatible with each
other, but are complementary" ("The present-Day Experiment in Western
Civilisation" by Toynbee, pp. 48-49).
The
Constitution-makers were fully conscious of this broad and comprehensive
character of Hindu religion; and so, while guaranteeing the fundamental right
to freedom of religion, Explanation II to Art. 25 has made it clear that in
sub-clause (b) of clause (2), the reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jaina or Buddhist religion,
and the reference to Hindu religious institutions shall be construed
accordingly." (emphasis supplied) (from pages 259-266) In a later
Constitution Bench decision in Commr. of Wealth Tax, Madras & Ors. vs. Late R. Sridharan by
L. Rs., (1976) Supp. SCR 478, the meaning of the term `Hinduism' as commonly
understood is stated thus;- "....It is a matter of common knowledge, that
Hinduism embraces within self so many diverse forms of beliefs, faiths,
practices and worship that it is difficult to define the term `Hindu' with
precision.
The
historical and etymological genesis of the word "Hindu" has been
succinctly explained by Gajendragadkar, C.J. in Shastri Yagnapurushdasji &
Ors. v. Muldas Bhundardas Vaishya & Anr. (A.I.R. 1966 S.C. 1119).
In
Unabridged Edition of Webster's Third New International Dictionary of the
English language, the term `Hinduism' has been defined as meaning "a
complex body of social, cultural and religious beliefs and practices evolved in
and largely confined to the Indian subcontinent and marked by a caste system,
an outlook tending to view all forms and theories as aspects of one eternal
being and truth, a moksha, and the practice of the way of works, the way of
knowledge, or the way of devotion as the means of release from the bound of
rebirths; the way of life and form of thought of a Hindu".
In Encyclopaedia
Britannica (15th Edition), the term `Hinduism' has been defined as meaning
"the civilization of Hindus (originally, the inhabitants of the land of
the Indus River). It properly denotes the Indian civilization of
approximately the last 2,000 years, which gradually evolved from Vedism, the
religion of the ancient Indo-European who settled in India in the last centuries of the 2nd
millennium BC. Because it integrates a large variety of heterogeneous elements,
Hinduism constitutes a very complex but largely continuous whole, and since it
covers the whole of life, it has religious, social, economic, literary, and
artistic aspects. As a religion, Hinduism is an utterly diverse conglomerate of
doctrines, cults, and way of life.... In principle, Hinduism incorporates all
forms of belief and worship without necessitating the selection or elimination
of any. The Hindu is inclined to revere the divine in every manifestation,
whatever it may be, and is doctrinally tolerant, leaving others tolerant,
leaving others - including both Hindus and non-Hindus - whatever creed and
worship practices suit them best. A Hindu may embrace a non-Hindu religion
without ceasing to be a Hindu, and since the Hindu is disposed to think
synthetically and to regard other forms of worship, strange gods, and divergent
doctrines as inadequate rather than wrong or objectionable, he tends to believe
that the highest divine powers complement each other for the well-being of the
world and mankind. Few religious ideas are considered to be finally
irreconcilable. The core of religion does not even depend on the existence or
non-existence of God or on whether there is one god or many. Since religious
truth is said to transcend all verbal definition, it is not conceived in
dogmatic terms. Hinduism is. then both a civilization and a conglomerate of
religions, with neither a beginning, a founder, nor a central authority,
hierarchy, or organization. Every attempt at a specific definition of Hinduism
has proved unsatisfactory in one way or another, the more so because the finest
Indian scholars of Hinduism, including Hindus themselves, have emphasized
different aspects of the whole".
In his
celebrated treatise "Gitarahasaya", B.G. Tilak has given the
following broad description of the Hindu religion :- "Acceptance of the
Vedas with reverence; recognition of the fact that the means or ways of
salvation or diverse; and realisation of the truth that the number of gods to
be worshipped is large, that indeed is the distinguishing feature of Hindu
religion".
In Bhagwan
Koer v. J.C. Bose & Ors., (1904 ILR 31 Cal. 11), it was held that Hindu
religion is marvelously catholic and elastic. Its theology is marked by
eclecticism and tolerance and almost unlimited freedom of private worship.
.....
This
being the scope and nature of the religion, it is not strange that it holds
within its fold men of divergent views and traditions which have very little in
common except a vague faith in what may be called the fundamentals of the Hindu
religion." (emphasis supplied) (at pages 481-482) These Constitution Bench
decisions, after a detailed discussion, indicate that no precise meaning can be
ascribed to the terms `Hindu', `Hindutva' and `Hinduism'; and no meaning in the
abstract can confine it to the narrow limits of religion alone, excluding the
content of Indian culture and heritage. It is also indicated that the term `Hindutva'
is related more to the way of life of the people in the sub- continent. It is
difficult to appreciate how in the face of these decisions the term `Hindutva'
or `Hinduism' per se, in the abstract, can be assumed to mean and be equated
with narrow fundamentalist Hindu religious bigotry, or be construed to fall
within the prohibition in sub-sections (3) and/or (3A) of Section 123 of the
R.P. Act. Bharucha, J. in Dr. M. Ismail Faruqui and Ors. etc. (Ayodhya case),
in the separate opinion for himself and Ahmadi, J. (as he then was), observed
as under :
"....Hinduism
is a tolerant faith. It is that tolerance that has enabled Islam, Christianity,
Zoroastrianism, Judaism, Buddhism, Jainism an Sikhism to find shelter and
support upon this land...." ( at page 442 ) Ordinarily, Hindutva is
understood as a way of life or a state of mind and it is not to be equated
with, or understood as religious Hindu fundamentalism. In "Indian Muslims
- The Need For A Positive Outlook" by Maulana Wahiduddin Khan, (1994), it
is said :
"The
strategy worked out to solve the minorities problem was, although differently
worded, that of Hindutva or Indianisation. This strategy, briefly stated, aims
at developing a uniform culture by obliterating the differences between all of
the cultures coexisting in the country. This was felt to be the way to communal
harmony and national unity. It was thought that this would put an end once and
for all to the minorities problem." ( at page 19 ) The above opinion
indicates that the word `Hindutva' is used and understood as a synonym of `Indianisation',
i.e., development of uniform culture by obliterating the differences between
all the cultures co-existing in the country.
In Kultar
Singh vs. Mukhtiar Singh, 1964 (7) SCR 790, the Constitution Bench construed
the meaning of sub-section (3) of Section 123 prior to its amendment. The question
there was whether a poster contained an appeal to voters to vote for the
candidate on the ground of his religion; and the meaning of the word `Panth' in
the poster was significant for the purpose. It was held as under :- "It is
true that a corrupt practice under s. 123(3) can be committed by a candidate by
appealing to the voters to vote for him on the ground of his religion even
though his rival candidate may belong to the same religion. If, for instance, a
Sikh candidate were to appeal to the voters to vote for him, because he was a
Sikh in name, was not true to the religious tenets of Sikhism or was a heretic
and as such, outside the pale of the Sikh religion, that would amount to a
corrupt practice under s. 123(3), and so, we cannot uphold the contention that
s. 123(3) is inapplicable because both the appellant and the respondent are
Sikhs. ....
The
corrupt practice as prescribed by s. 123(3) undoubtedly constitutes a very
healthy and salutary provision which is intended to serve the cause of secular
democracy in this country. In order that the democratic process should thrive
and succeed, it is of utmost importance that our elections to Parliament and
the different legislative bodies must be free from the unhealthy influence of
appeals to religion, race, caste, community, or language. If these
considerations are allowed any sway in election campaigns, they would vitiate
the secular atmosphere of democratic life, and so, s. 123(3) wisely provides a
check on this undesirable development by providing that an appeal to any of
these factors made in furtherance of the candidature of any candidate as
therein prescribed would constitute a corrupt practice and would render the
election of the said candidate void.
In
considering the question as to whether the distribution of the impugned poster
by the appellant constitutes corrupt practice under s. 123(3), there is one
point which has to be borne in mind. The appellant had been adopted as its
candidate by the Akali Dal Party.
This
Party is recognised as a political party by the Election Commission
notwithstanding the fact that all of its members are only Sikhs. It is
well-known that there are several parties in this country which subscribe to
different political and economic ideologies, but the membership of them is
either confined to, or predominantly held by, members of particular communities
or religions. So long as law does not prohibit the formation of such parties
and in fact recognises them for the purpose of election and parliamentary life,
it would be necessary to remember that an appeal made by candidates of such
parties for votes may, if successful, lead to their election and in an indirect
way, may conceivably be influenced by considerations of religion, race, caste,
community or language. This infirmity cannot perhaps be avoided so long as
parties are allowed to function and are recognised, though their composition
may be predominantly based on membership of particular communities or religion.
That is why we think, in considering the question as to whether a particular
appeal made by a candidate falls within the mischief of s. 123(3), courts
should not be astute to read into the words used in the appeal anything more
than can be attributed to them on its fair and reasonable construction.
That
takes us to the question of construing the impugned poster. The principles
which have to be applied in construing such a document are well- settled. The
document must be read as a whole and its purport and effect determined in a
fair, objective and reasonable manner. In reading such documents, it would be
unrealistic to ignore the fact that when election meetings are held and appeals
are made by candidates of opposing political parties, the atmosphere is usually
surcharged with partisan feelings and emotions and the use of hyperboles or
exaggerated language, or the adoption of metaphors, and the extravagance of
expression in attacking one another, are all a part of the game, and so, when
the question about the effect of speeches delivered or pamphlets distributed at
election meetings is argued in the cold atmosphere of a judicial chamber, some
allowance must be made and the impugned speeches or pamphlets must be construed
in that light. In doing so, however, it would be unreasonable to ignore the
question as to what the effect of the said speech or pamphlet would be on the
mind of the ordinary voter who attends such meetings and reads the pamphlets or
hears the speeches. It is in the light of these well-established principles
that we must now turn to the impugned pamphlet." (emphasis supplied) (at
pages 793-795) The test applied in the decision was to construe the meaning of
the word `Panth' not in the abstract but in the context of its use. The
conclusion reached was that the word `Panth' used in the poster did not mean
Sikh religion and, therefore, the appeal to the voters was not to vote for the
candidate because of his religion. Referring to an earlier decision in Jagdev
Singh Sidhanti vs Pratap Singh Daulta and Ors., 1964 (6) SCR 750, it was
reiterated as under :- "..... Political issues which form the
subject-matter of controversies at election meetings may indirectly and
incidentally introduce considerations of language or religion, but in deciding
the question as to whether corrupt practice has been committed under s.
123(3),
care must be taken to consider the impugned speech or appeal carefully and
always in the light of the relevant political controversy. ....." (at page
799) Thus, it cannot be doubted, particularly in view of the Constitution Bench
decisions of this Court that the words `Hinduism' or `Hindutva' are not
necessarily to be understood and construed narrowly, confined only to the
strict Hindu religious practices unrelated to the culture and ethos of the
people of India, depicting the way of life of the Indian people. Unless the
context of a speech indicates a contrary meaning or use, in the abstract these
terms are indicative more of a way of life of the Indian people and are not
confined merely to describe persons practising the Hindu religion as a faith.
Considering
the terms `Hinduism' or `Hindutva' per se as depicting hostility, enmity or
intolerance towards other religious faiths or professing communalism, proceeds
form an improper appreciation and perception of the true meaning of these
expressions emerging from the detailed discussion in earlier authorities of
this Court. Misuse of these expressions to promote communalism cannot alter the
true meaning of these terms. the mischief resulting from the misuse of the
terms by anyone in his speech has to be checked and not its permissible use. It
is indeed very unfortunate, if in spite of the liberal and tolerant features of
`Hinduism' recognised in judicial decisions, these terms are misused by anyone
during the elections to gain any unfair political advantage. Fundamentalism of
any colour or kind must be curbed with a heavy hand to preserve and promote the
secular creed of the nation. Any misuse of these terms must, therefore, be
dealt with strictly.
It is,
therefore, a fallacy and an error of law to proceed on the assumption that any
reference to Hindutva or Hinduism in a speech makes it automatically a speech
based on the Hindu religion as opposed to the other religions or that the use
of words `Hindutva' or `Hinduism' per se depict an attitude hostile to all
persons practising any religion other than the Hindu religion. It is the kind
of use made of these words and the meaning sought to be conveyed in the speech
with has to be seen and unless such a construction leads to the conclusion that
these words were used to appeal for votes for a Hindu candidate on the ground
that he is a Hindu or not to vote for a candidate because he is not a Hindu,
the mere fact that these words are used in the speech would not bring it within
the prohibition of sub-section (3) or (3A) of Section 123. It may well be, that
these words are used in a speech to promote secularism or to emphasise the way
of life of the Indian people and the Indian culture or ethos, or to criticise
the policy of any political party as discriminatory or intolerant. The
parliamentary debates, including the clarifications made by the Law Minister
quoted earlier, also bring out this difference between the prohibited and
permissible speech in this context. Whether a particular speech in which
reference is made to Hindutva and/or Hinduism falls within the prohibition
under sub- section (3) or (3A) of Section 123 is, therefore, a question of fact
in each case.
This
is the correct premise in our view on which all such matters are to be
examined. The fallacy is in the assumption that a speech in which reference is
made to Hindutva or Hinduism must be a speech on the ground of Hindu religion
so that if the candidate for whom the speech is made happens to be a Hindu, it
must necessarily amount to a corrupt practice under sub-section (3) and/or
sub-section (3A)of Section 123 of the R.P. Act. As indicated, there is no such
presumption permissible in law contrary to the several Constitution Bench
decisions referred herein.
Non-compliance
of Section 99 of the R.P. Act The contention that the notice given to Bal
Thackeray under Section 99 of the R.P. Act was not in conformity with that
provision and that there is non-compliance of the requirements of Section 99,
has no merit. the notice was given after the entire evidence had been recorded
and the learned trial Judge formed the prima facie opinion that the corrupt
practices alleged to have been committed under sub- sections (3) and (3A) of
Section 123 appeared to have been proved and Bal Thackeray was likely to be named
along with the returned candidate to be guilty of those corrupt practices. The
notice given was accompanied by copies of pleadings and the entire evidence
adduced at the trial for proving those corrupt practices. The notice clearly
stated that the notice had the opportunity to cross-examine such witnesses as
had already been examined and of calling evidence in his defence and of being
heard. The notice raised objection to the notice alleging that it was vague,
which was rejected by the High Court. That order was challenged by a special
leave petition in this Court which was dismissed granting liberty to the notice
to apply in the High Court for the precise particulars claimed by him.
Ultimately
certain portions from the material on record were indicated by the petitioner
on such a direction being given by the High Court. In view of the direction of
this Court in the special leave petition, it would have been more appropriate
for the High Court to indicate the precise portions. However, there is no
prejudice caused inasmuch as the portions were indicated by the election
petitioner on the High Court's direction. The election petitioner Prabhakar Kashinath
Kunte (PW-1) was called for cross- examination on behalf of the notice. The
notice was given full opportunity to cross-examine the witnesses already
examined and to adduce evidence in his defence and to argue his case in the
High Court. The notice Bal Thackeray did not choose to enter the witness box
and, therefore, the material present has to be examined without any denial by
the notice as a witness in the case.
There
is no dispute that no material which was not given to the notice Bal Thackeray
was used against him. We have already indicated that the finding of proof of
the corrupt practices alleged in the election petition is based on the three
speeches of Bal Thackeray which are not denied either by Dr. Ramesh Prabhoo or
by Bal Thackeray. Copy of the text of those speeches is also undisputed. All
this was furnished to the notice Bal Thackeray. It is difficult to visualise
what prejudice could be caused to the notice on these facts and how there could
be any non-compliance of Section 99 of the R.P. Act in this situation.
In
order to examine the contention of non-compliance of Section 99, it is
necessary to examine the requirements of that provision. Section 99 reads as
under:- "99. Other orders to be made by the High Court. - (1) At the time
of making an order under section 98 the High Court shall also make an order -
(a) where any charge is made in the petition of any corrupt practice having
been committed at the election, recording - (i) a finding whether any corrupt
practice has or has not been proved to have been committed at the election, and
the nature of that corrupt practice; and (ii)the names of all persons, if any,
who have been proved at the trial to have been quality of any corrupt practice
and the nature of that practice; and (b) fixing the total amount of costs
payable and specifying the persons by and to whom costs shall be paid:
Provided
that a person who is not a party to the petition shall not be named in the
order under sub-clause (ii) of clause (a) unless - (a) he has been given notice
to appear before the High Court and to show cause why he should not be so
named; and (b) if he appears in pursuance of the notice, he has been given an
opportunity of cross-examining any witness who has already been examined by the
High Court and has given evidence against him, of calling evidence in his defence
and of being heard.
(2) In
this section and in section 100, the expression "agent" has the same
meaning as in section 123." Sub-section (1) requires that at the time of
making an order under Section 98, the High Court shall also make an order
recording the names of all persons, if any, who have been proved at the trial
to have been quality of any corrupt practice and the nature of that practice.
In other words, while deciding the election petition at the conclusion of the
trial and making an order under Section 98 disposing of the election petition
in one of the ways specified therein, the High Court is required to record the
names of all persons quality of any corrupt practice which has been proved at
the trial. Proviso to sub-section (1) then prescribes that a person who is not
a party to the petition shall not be so named unless the condition specified in
the proviso is fulfilled. The requirement of the proviso is only in respect of
a person who is not a party to the petition and is to be named so that he too
has the same opportunity which was available to a party to the petition. The
requirement specified is of a notice to appear and show cause why he should not
be named and if he appears in pursuance of the notice, he has to be given an
opportunity of cross-examining any witness who has already been examined by the
High Court and has given evidence against him and also the opportunity of
calling evidence in his defence and of being heard. In short, the opportunity
which a party to the petition had at the trial to defend against the allegation
of corrupt practice is to be given by such a notice to that person of defending
himself if he was not already a party to the petition. In other words, the
notice has to be equated with a party to the petition for this purpose and sis
to be given the same opportunity which he would get if he was made a party to
the petition.
This
is the pragmatic test to be applied for deciding the question of compliance of
Section 99 of the R.P. Act if the notice had the opportunity which he would
have got as a party to the petition, then there can be no case of non-
compliance of Section 99. The opportunity required to be given by the proviso
to sub-section (1) of Section 99 is the same and not more than that available
to a party to the petition to defend himself against the charge of corrupt
practice. Applying the above test, there can be no doubt that there is no
non-compliance of Section 99 in the present case. The notice Bal Thackeray had
the same opportunity which the returned candidate Dr. Ramesh Yeshwant Prabhoo
got as a respondent to the petition. The notice was given the opportunity to
cross-examine any witness who had already been examined by the High Court and
the witnesses who were considered to have given evidence against him, were also
enumerated in the notice; and he was given an opportunity to call evidence in
his defence and to be heard.
In
this situation, the grievance made that specific portions of the material which
formed the record at the trial was not precisely indicated to the notice has no
merit. It was clear from the pleading that the allegation against the notice
was in respect of the three speeches made by him, the particulars of which were
given and the text of those speeches also was available to the notice which he
did not even deny. On these facts, there is no ground to allege non-compliance
of Section 99 of the R.P. Act. This contention on behalf of the notice Bal
Thackeray is, therefore, rejected and the objection raised in the appeal of Bal
Thackeray of non-compliance of Section 99 of the R.P. Act has no merit.
We
would now proceed to examine the facts of this case.
Speeches
It is in the light of the above discussion and the meaning of sub-sections (3)
and (3A) of Section 123 that the effect of the alleged offending speeches has
to be examined.
The
three speeches were made on 29.11.1987, 9.12.1987 and 19.12.1987 and 10.12.1987
amount to corrupt practices under sub-sections (3) and (3A) of Section 123,
while the speech of 9.12.1987 is a corrupt practice only under sub-section (3)
thereof. The returned candidate Dr. Ramesh Yeshwant Prabhoo was present in all
the three meetings in which these speeches were given by Bal Thackeray. The
consent of Dr. Prabhoo for these speeches is implied from his conduct including
his personal presence in all the three meetings.
Certain
extracts from the alleged speeches of Bal Thackeray, translated in English, are
expressly pleaded in the election petition, as under:- From Speech of
29.11.1987 "We are fighting this election for the protection of Hinduism.
Therefore, we do not care for the votes of the Muslims.
This
country belongs to Hindus and will remain so." From Speech of 9.12.1987
"Hinduism will triumph in this election and we must become hon'ble
recipients of this victory to ward off the danger on Hinduism, elect Ramesh Prabhoo
to join with Chhagan Bhujbal who is already there. You will find Hindu temples
underneath if all the mosques are dug out. Anybody who stands against the
Hindus should be showed or worshipped with shoes. A candidate by name Prabhoo
should be led to victory in the name of religion." From Speech of
10.12.1987 "We have gone with the ideology of Hinduism. Shiv Sena will
implement this ideology. Though this country belongs to Hindus, Ram and Krishna
are insulted.
(They)
valued the Muslim votes more than your votes: we do not want the Muslim votes.
A snake like Shahabuddin is sitting in the Janata Party, man like Nihal Ahmed
is also in Janata Party. So the residents of Vile Parle should bury this party
(Janata Party)." It has been pleaded in the election petition that the
above utterances in the three meetings are examples to show that the appeal to
voters emphasised that Dr. Ramesh Prabhoo was the only person who could
represent the Hindu community and, therefore, the voters should vote for Ramesh
Prabhoo in the name of religion. The full text of the speeches were adduced in
evidence and the contents thereof are not disputed. It may be mentioned that a
notice under Section 99 of the R.P. Act was issued to Bal Thackeray who merely
filed an affidavit but did not enter the witness box. The true import and
impact of these speeches has, therefore, to be adjudged in the light of the
evidence including the statement of Dr. Ramesh Yeshwant Prabhoo without the
version in evidence of Bal Thackeray.
The
case was argued even before us on a demurrer treating the contents of the
speeches as reproduced in the full text in evidence, of which the specific
portions pleaded in the election petition are extracts. The question is:
Whether these speeches amount to corrupt practices under sub-section (3) and/or
(3A) of Section 123 as held by the High Court ? We may now quote certain
extracts from the three speeches of Bal Thackeray on which reliance has been
placed in particular by Shri Ashok Desai to support the judgment of the High
Court that they constitute the said corrupt practices. These are :
First
speech on 29.11.1987 "All my Hindu brothers, sisters and mothers gathered
here. .... Today Dr. Prabhu has been put up as candidate from you Parle. ...
But here one cannot do anything at anytime about the snake in the form of Khalistan
and Muslim. ....
The
entire country has been ruined and therefore we took the stand of Hindutva and
by taking the said stand we will step in the legislative Assembly. ....
Unless
we step forward strongly it would be difficult for us to live because there
would be war of religion. ....
Muslims
will come, What will you Hindu (people) do. Are you going to throw `Bhasma'
(i.e. ashes) on them. ... We won't mind if do not get a votes from a single
Muslim and we are not at all desirous to win an election with such votes. .... therefore,
there is a dire need of the voice of Hindutva and therefore please send Shiv-Sena
to Legislative Assembly. .... Who are (these) Muslims. Who are these `lande'.
Once Vasant
Dada had called me when he was a Chief Minister. He told me that rest is O.K.
But asked me as to why I was calling them Lande. But is it correct if they call
us `Kafer' (i.e. traitor) then we will certainly call the `Lande'. .... They
should bear in mind that this country is of Hindus, the same shall remain of
Hindus. .... if Shiv- sena comes to power and if the morchas come ---- first of
all (we) shall make them come. Everybody will have to take `diksha' (i.e.
initiation) of Hindu religion. ...." Second speech of 9.12.1987 "....
The victory will not be mine or of Dr. Prabhu or of Shiv-sena but the victory
will be that of Hinduism. You will be instrumental in victory and you should
become instrument for the same.
At
last you have the right to get rid of the difficulties faced by you caste,
creed, gods deities and Hindu religion.
....
Therefore, I want to say that today we are standing for Hinduism. ....
Whatever
Masjids are there, if one starts digging the same, one will find Hindu temples
under the same. .... If any body stands against Hindustan you should show courage by performing pooja (i.e. worship)
with shoes. .... And a person by name Prabhu who is contesting the election in
the name of religion serve ahead (in the assembly). A `Jawan' - like Prabhu
should go there (in the assembly). ...." Third speech of 10.12.1987
".... It will do, if we do not get a vote from any Muslim. If anybody from
them is present at this place he should think for himself. I am not in need of
their votes. But I want you vote. ....
You
must sent only Dr. Ramesh Prabhu of Shiv-sena, otherwise Hindus will be
finished. It will not take much take for Hindustan to be green (i.e. Pakistan?).
....
As
earlier stated, the three speeches of Bal Thackeray from which the above
extracts have been quoted are admitted.
Similarly
the interview of Dr. Ramesh Yeshwant Prabhoo and its text published in Janmabhoomi
Prawasi is admitted. Dr. Prabhoo was the Mayor of Bombay. Dr. Prabhoo (RW-1)
admitted his presence in the meetings held on 29.11.1987, 9.12.1987 and 10.12.1987
in which the above speeches were given by Bal Thackeray. He admitted speaking
himself also in these meetings. He has said nothing in his statement to suggest
that he did not consent to the contents of the speeches of Bal Thackeray. In
his deposition, he has expressly admitted that the speeches of Bal Thackeray
were according to his election campaign. the element of the candidate's consent
for the appeal to the voters made by bal Thackeray in his speeches is,
therefore, adequately proved. About his interview published in the Janmabhoomi Prawasi,
issue of 9.12.1987, he said that the report is substantially correct, even
though the first paragraph of that news item is incorrect. Omitting the first
paragraph of the news item which he denied, certain portions, translated into
English, from the remaining news item publishing the interview are as under :-
".... Dr. Prabhu told me that there was a Hindu wave in Parle. The battle
is between Hindus and Muslims i.e. to say between nationalist and anti-
nationalist. ....
xxx xxx
xxx Supremely confident about his victory in the Vile Parle bye-election, Dr. Prabhu
discounted any possibility of his defeats but he added that if he loses, it
will mean that Hinduism has lost, ...." The appeal made to the voters by Bal
Thackeray in his aforesaid speech was a clear appeal to the Hindu voters to
vote for Dr. Ramesh Prabhoo because he is a Hindu. The clear import of the
above extracts in each of the three speeches is to this effect. The first
speech also makes derogatory reference to Muslims by calling them `snake' and
referring to them as `lande' (derogatory term used for those practising
circumcision). The language used in the context, amounted to an attempt to
promote feelings of enmity or hatred between that Hindus and the Muslims on the
ground of religion. The first speech, therefore, also constitutes and corrupt
practice under sub-section (3A).
The
High Court has held the second speech to fall only under sub-section (3) and
not sub-section (3A), but the third speech has been held to fall both under
sub-section (3) and (3A). We have already held the third speech also to
constitute the corrupt practice under sub-section (3). the correctness of the
English translation of a part of the third speech was found to be defective at the
hearing and, therefore, an agreed fresh translation thereof was taken on
record. Reading the speech in the light of the fresh agreed translation of the
defective portion, it appears to us that the High Court's finding that the
third speech amounts also to the corrupt practice under sub-section (3A) cannot
be affirmed, even though this variation is of no consequence to the ultimate
result.
Our
conclusion is that all the three speeches of Bal Thackeray amount to corrupt
practice under sub-section (3), while the first speech is a corrupt practice
also under sub- section (3A) of Section 123 of the R.P. Act. Since the appeal
made to the voters in these speeches was to vote for Dr. Ramesh Prabhoo on the
ground of his religion as a Hindu and the appeal was made with the consent of
the candidate Dr. Ramesh Prabhoo, he is quality of these corrupt practices. For
the same reason, Bal Thackeray also is guilty of these corrupt practices and,
therefore, liable to be named in accordance with Section 99 of the R.P. Act of
which due compliance has been made in the present case.
We
cannot help recording our distress at this kind of speeches given by a top
leader of a political party. The lack of restraint in the language used and the
derogatory terms used therein to refer to a group of people in an election
speech in indeed to be condemned. The likely impact of such language used by a
political leader is greater. it is, therefore, a greater need for the leaders
to be more circumspect and careful in the kind of language they use in the
election campaign. This is essential not only for maintaining decency and
propriety in the election campaign but also for the preservation of the proper
and time honoured values forming part of our cultural heritage and for a free
and fair poll in a secular democracy. The offending speeches in the present
case discarded the cherished values of our rich cultural heritage and tended to
erode the secular polity. We say this, with the fervent hope that our
observation has some chastening effect in the future election campaigns.
For
the aforesaid reasons, both the appeals must fail.
We may
observe that considerable irrelevant material was brought on record during the
trial at the instance of both the parties which, apart from needlessly
enlarging the scope of the trial, has led to needless extra expense and wastage
of time even in the hearing of these appeals. In these circumstances, it is
appropriate to direct the parties to bear their own costs in this Court.
Accordingly, both the appeals are dismissed.
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