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 m
