Vs. Union of India & Ors  INSC 445
(22 March 1996)
Jagdish Saran (J) Verma, Jagdish Saran (J) Singh N.P. (J) Venkataswami K. (J)
1996 AIR 1611 JT 1996 (5) 566 1996 SCALE (3)65
O R D
prayer in this writ petition under Article 32 of the Constitution of India is
for reconsideration of the judgment in Manohar Joshi vs.Nitin Bhaurao Patil and
Another (1996) 1 SCC 169. The petitioner's contention, in substance, is that
the judgment is incorrect.
sufficient to say that Article 32 of the Constitution is not available to
assail the correctness of a decision on merits or to claim its reconsideration.
This has been clearly reiterated in the recent decision in Khoday Distilleries
Limited & Anr. vs. The Registrar General, Supreme Court of India, 1995 (6)
Scale 74 wherein the decision in A.R. Antulay vs. R.S. Nayak Anr. 1988 (Suppl.
1) SCR 1, has been explained. This alone is sufficient to dismiss the writ
in view of certain apprehensions expressed by the petitioner, we deem it proper
to make some further observations now, which we had considered unnecessary to
incorporate in the judgment in Manohar Joshi. We may observe that the decision
of this Court in S.R.Bommai and Others vs.
India and Others, (1994) 3 SCC 1, did not relate to the construction of, and
determination of the scope of sub- sections (3) and (3A) of Section 123 of the
Representation of the People Act, 1951 and, therefore, nothing in the decision
in S.R. Bommai is of assistance for construing the meaning and scope of
sub-sections (3) and (34)-of Section 123 of the Representation of the People
Act. Reference to the decision in S.R. Bommai is, therefore, inapposite in this
also add that the challenge in the writ petition to the correctness of the
decision in Manohar Joshi is based on a misreading of that decision. In the
judgment, the decision on the question of law is based on earlier Constitution
Bench decisions of this Court by which we are bound; and the observation
therein which is challenged as incorrect in this writ Petitions is not the
basis of the decision but an opinion expressed on an assumption if the making
of the alleged statement of the hope of Maharashtra becoming a Hindu State, in
the speech is held to be proved, without recording a finding that it was so
proved. This allegation was based on a police report and Manohar Joshi did not
admit the making of such a statement in his speech.
strong disapproval was expressed of such a statement, if actually made. This is
clear particularly from paras 62 to 67 of the decision in Manohar Joshi
reported in 1996 (1) SCC 169. Specific reference has been made for this purpose
in paras 64 to 67 (SCC) to the decision in Jamaat-E- Islami Hind vs. Union of
India, 1995 (1) SCC 428, to indicate the standard of proof required for proving
a corrupt practice which had not been satisfied in Manohar Joshi in view of the
absence of legal evidence to prove the corrupt practice alleged in the case.
careful and dispassionate reading of the decision would show that eh
apprehensions and misgivings expressed in the writ petition, are imaginary and
baseless. There is no occasion to read in the judgment in Manohar Joshi,
something which is not said or to say that it conflicts with the concept of
secularism in S.R. Bommai where this question relating to the meaning of
sub-sections (3) and (3A) of Section 123 of the Representation of the People
Act neither arose, nor was decided. The application of the decision in Manohar
Joshi in cases like Dr. Ramesh Yeshwant Prabhoo vs. Shri Prabhakar Kashinath Kunte
& Others, 1996 (1) SCC 130, Shri Suryakant Venkatrao Mahadik vs. Smt. Saroj
Sandesh Baik (Bhosale), 1996 (1) SCC 384, and Mohan vs. Bhairon Singh Shekhawat,
1996 (1) Scale SP3, is another pointer to indicate that there is nothing in the
judgment in Manohar Joshi to give rise to any such apprehension that it can
enable misuse of religion for making appeal for votes in an election.
add that the deficiency, if any, in the statutory prohibition enacting the
corrupt practice in Section 123 of the Representation of the People Act, has to
be cured by legislation and that deficiency cannot be cured by reading into a
penal provision something which is not enacted therein. The proposal was made
at one time to perform the legislative exercise of enacting a provision to
prevent any possible misuse of religion during elections, but it was,
unfortunately, abandoned. We do hope that at least now there would remain no
misapprehension in the mind of anyone.
writ Petition is, therefore, dismissed.
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