DR. RAMESH YESHWANT PRABOO v. SHRI PRABHAKER KASHINATH KUNTE AND ORS.
Citation: [1995] SUPP. 6 S.C.R. 371; 1995 INSC 868
Court: Supreme Court of India
Bench: J.S. VERMA , N.P. SINGH, K. VENKATASWAMI
Judgment date:
Case summary
1995 INSC 868. Supreme Court of India judgment dated 1995-12-11. DR. RAMESH YESHWANT PRABOO v. SHRI PRABHAKER KASHINATH KUNTE AND ORS. Read the judgment and...
Judgment text
SUPREME COURT REPORTS [1995] SUPP. 6 S. C. R. DR. RAMESH YESHWANT PRABOO v. SHRI PRABHAKER KASHINATH KUNTE AND ORS. DECEMBER 11, 1995 [J. S. VERMA, N. P. SINGH AND K. VENKATASWAMI, JJ. ) Election Laws : Representation of the people Act, 1951-Sections 116A, 100(1)(b), 123(3) & (3A),-Petition for setting aside the election on account of corrnpt practices-Use of religion for soliciting votes by successful candidate and his _ agent-Appeal to vote or refrain from voting prohibited. 'Hindutva' Meaning of-lndicates way of life of Indian people-Not to be confined to describing people practicing Hindu religion. Corrnpt practice-All references to 'Hindutva' or 'Hinduisim; in speeches need not be corrnpt practice-Speech to preserve own language, religion, culture etc. not forbidden by the Act:-The type of reference and meaning sought to be conveyed in the speech to be considered before arriving at the decision. Positive appeal-Appeal made on ground of candidates' religion.
Negative Appeal-Appeal to refrain from voting on ground of other candidates' religion. Both positive and negative appeals prohibited under the Act-Inference that may lead to the conclusion of the existence of such appeals is suffi-cient-The manner in which common man understands the speech to be kept view. The election of the Appellant, who was returned successful from y. ile Parle constituency to the Maharashtra Assembly in 1987, was challenged by the respondent under Section 116A of the R. P. Act, alleging corrupt practice under Ss. 123(3) & (3A), of the R. P. Act. It was pleaded that both the Appellant as well as his agent Mr. Bal Thackery not only appealed for votes on the basis of the candidate's own religion but also promoted or tended to arouse ill feelings between the people of different communities and the election petitioner relied on certain speeches made during the election meetings. The High Court came to the finding that three public speeches of Mr.
Thackery in the election meeting of the Appellant were appeals to. vote for t11e Appellant in the name of his religion, and were also in the nature of arousing communal feelings. Thus the High Court upheld the charge of corrupt practice on the ground of S. 100(1) (b) of the R. P. Act and set aside the election of the Appellant and also named Mr. Thackery in accordance with s. 99 of the R. P. Act. Before this court the plea taken by the Appellants was, inter-alia, that s. 123(3) & (3A) were constitutionally invalid and violative of Article 19(1)(a) of the Constitution, since the freedom of speech guaranteed in the said Article is absolute, the words 'decency' and 'morality' refer to sexual morality only, to get the protection of Article 19(2), the provisions of s.
123(3) & (3A) have to be read as reasonable restriction, only a direct appeal on the ground of the candidate's religion which also has a tendency to affect public order will fall within the purview of Section 123(3) & (3A), inter-alia because the object of introducing the term 'his' in the substituted sub-Section (3) is only tu restrict the scope to cases of direct appeal on the basis of the candidate's religion, a speech where religion is referred to but does not directly appeal to voters on the ground of religion is not hit by s. 123(3) or (3A), that the speeches to 'Hindutva', which is a reference to Indian culture and not only to Hindu religion, the speeches were a criticism of the Congress party's attitude which was to favour the minorities against the Hindus. On behalf of Mr. Thackery, it was submitted that there was non-compliance with the requirements of s. 99 since he was not informed of the precise charges against him nor he was supplied with the particulars.
In general it was also pleaded that the election petition was lacking in material particulars and the particulars which were brought in at the stage of evidence were to be excluded, that the High Court has arrived at the decision based on mere impressions and had not Limited its enquiry to the legally admissible evidence. On behalf of the Respondent it was pointed out that the question of constitutional validity of s. 123(3) & (3A) is already settled by Jamuna Prasad Mukhariya And Others v. Lachhi Ram And Others, [1955) 1 SCR DR. RAMESH YESHWANT PRABOO v. P. K KUNTE 373 608. It was also pointed ont that freedom of speech does not inclnde the type of speeches given by Mr.
Thackery at the election meetings, that both the substance and the main thrust of the speeches are to be examined to arrive at the conclusion whether there was an appeal in the name of religion and the term 'Hindutva' used in an election speech refers to the 'Hindu' religion, that it was not necessary that the speech mnst be direct though it was conceded that the word 'his' has significance bnt should not be held to restrict the meaning of the section. In fact one of the speeches was an appeal to voters to vote for the candidate because he was a Hindu and it also tended to promote enemity between the communities and therefore corrupt practice. Dismissing the appeals, this Court HELD : 1. All the three speeches of Bal Thackery amount to corrupt practice under sub-section (3), while the first speech is a corrupt practice also under snb·section (3A) of S123 of the R. P. Act.
Since the appeal made to voters in these speeches was to vote for the Appellant on the ground of his religion as a Hindn and the appeal was made with the consent of the candidate, he is guilty of these corrupt practices. For the same reason, Bal Thackery also is guilty of these ~orrupt 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. There is no ambiguity in sub-section (3) and it clearly indicates the particular religion cin the basis of which an appeal to vote or refrain from voting for any person is prohibited nnder sub-section (3). [419-G-H] 2. 1. There can be no doubt that the word 'His' nsed 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 reading of sub~section (3) and this is the only manner in which the word 'His' used therein can be constructed. [387-F-G] 2. 2. When the appeal is to vote on the ground of 'his' religion for the furtherence of the prospects of the election of the candidate, that appeal is made on the basis of the religion of that candidate for whom the votes are solicited. On the other hand when the appeal is to refrain from voting for any person on the gronnd of 'his' religion for prejndicially affecting the election of any candidate, that appeal is based on the religion of the candidate whose election is sought to be prejudicially affected. [387-H, 388-A] 23.
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 is a negative appeal. [389-B-C] 2. 4. The substance of the speech and the manner in which it is meant to be understood by the audience determines the nature, and not the camouflage by the artistic use of the language. For understanding th• 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 the speech. The speech has also not 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 are ordinaril-ly addressed to audience comprised of common men and therefore, the manner in which it wonld be understood by such an audience has to be kept in view. [388-F-GJ 3. 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 the public order is unnecessary, on account of which it is not implicit in the provision. This is the meaning and the correct construction of sub-section (3) of Sl23. [389-DJ 4. 1. 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. [392-A] Parliamentary debates, referred to. 4. 2.
A speech with a secular stance alleging discrimination of any particular religion and promising removal of the imbalance cannot be treated as an appeal on the ground religion as its thrust is for promoting DR. RAMESH YESHWANTPRABOO v. P. K KUNTE 375 secularism. Jn 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. [392-B-C] 4. 3. 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.
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. [393-B-C] 4. 4. When it is said that politics and religion do not mix, it merely D. 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. It obviously does not mean that even such permissible political speeches are forbidden.
This the meaning and true scope of sub-section (3) of section 123 of the Act. [392-D-393-D) Dr. M. Ismail Faruqui and Others Etc, Etc. v. Union of India and Others etc. , [1994] 6 SCC 360 (Ayodhya case), referred to. 5. Jn sub-section (3A), the element of prejudicial effect on public order is implicit. This is the logical inference to draw on proof of the constituent parts of sub-section (3A). 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. [397-H] Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors. , [1995] Suppl. SCR 281, relied on. 6. 1.
The heads specified in clause (2) of Article 19 are several and they are intended to cover the entire area within which the absolute freedom to say anything which the speaker may like 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 or 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. 1\vo of the heads mentioned are decency and morality. Thus any law which imposes reasonable restrictions on the exercise of this right in the interests of decency and morality is also saved by clause (2) of Article 19.
Jn view of the expression 'in the interest or and the context of election campaign for a free and fair poll, the right to contest the election being statutory and subject to the provision of the statute, the words 'decency' and 'morality' do not require a narrow or pedantic meaning to be given to these words. The ordinary dictionary meaning of 'decency' indicates that the action must be in conformity with the current standards of behaviour or propriety, etc. (398-F-H, 399-A-C] 6. 2. 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. Seeking votes at an election on the ground of the candidates' religion in a secular State, is against the norms of decency and propriety of the society.
The saving in clause (2) of Article 19 permits the imposition of reasonable restrictions on the exercise of the right conrerred by Article 19(1) (a) by making any law in the interests of decency and morality, and sub-section 3 of Section 123 of the R. P. Act has the protection of clause (2) of Article 19 under the head 'decency' therein. This conclusion is reached even if it is assumed that the provision is not saveci 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 in any manner, snb-section(3) of section 123 cannot -be held to be unconstitutional. (399-C, F-H, 400-A-B] DR. RAMESH YESHWANTPRABOO v. P. K KUNTE 377 Jamuna Prasad Mukhariya and Others v. Lachhi Ram and Others. , [1955) 1 SCR 608 and Knuller (Publishing, Printing and Promotions) Ltd. and Others v. Director of Public Prosecutions. , [1972) 2 ALL ER 898, referred to. 7. 1 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. [400-G] 7. 2. 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.
The word 'Hindutva' is used and understood as synonym of 'Indianisation' i. e. , development of uniform culture by obliterating the differences between all the cultures co-existing in the country. 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 person practicing the Hindu religion as a faith. Whether a particular speech in which reference is made to Hindutva and/or Hinduism falls within the prohibition under snb-section (3) or (3A) of section 123 is, therefore, a question of fact in each case. (407-G, 408-C, 411-A,H, 412-A) Sastri Yagnapurushadji and Others v Muldas Bhudardas Vaishya and Another, [1966) 3 SCR 242; Commr. of Wealth Tax. Madras & Ors. v. Late R. Sridharan, by L. Rs. (1976) Supl. SCR 478; Bhagwan Koer v. J. C. Bose & Ors. , (1904) ILR 31 Cal. 11; Dr. M. Ismail Faruqui and Ors. Etc. Etc. v. Union of India Etc.
, (1994) 6 SCC 360 (Ayodhya case); Ku/tar Singh v. Mukhtiar Singh, [1964) 7 SCR 790 andlagdev Singh Sidhanti v. Pratap Singh Dau/ta and Ors. , [1964] 6 SCR 750. 'Gitarahasaya'- by B. G. Tilak, referred to. 73. Considering the terms 'Hinduism' or 'Hindutva' per seas depicting hostility, enemity or intolerence towards other religious faiths or professing communalism, proceeds from an improper appreciation and perception of the true meaning of these expressions. Misuse of these expres-sillns to promote communalism cannot alter the true meaning of these of terms. The mischief resulting from the misuse of the terms ~y anyone in his speech has to be checked and not its permissible use. (411-B-C] 8. The noticee Bal Thackery 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. The allegation against the noticee 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 noticee 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. [415-B, DJ 9. The appeal made to the voters by Bal Thackery in his aforesaid • speeches was a clear appeal to the Hindu voters to vote for the Appellant 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.
The language used in the context, amount to an attempt to promote feelings of enemity or hatred between the Hindus and the Muslims ·on the ground of religion. The first speech therefore also constitutes the corrnpt practice under sub-section (3A). The third speech also constitutes corrupt practice under sub-section (3). Also, the offending speeches in the present case discarded the cherished values of our rich cultural heritage and tended to erode the secular polity. (419-C, D, 420-D] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2836 of 1989 etc: From the Judgment and Order dated 7. 4. 89 of the Bombay Higb Court in E. P. No. 1 of 1988. D. P. Gupta, Solicitor General, Venugopal Reddy, BA. Desai, Ashok H. Desai,, Ram Jethrnalani, Rana Jois, AM. Khanwilkar, Yatender Shar-ma, Rajiv Malhotra, V. D. Joshi, Ms. V. D. Khanna, M. P. Vashi, Pallav Shishodia, M. N. Shroff, Ms. Reema Bhandari, P. Parmeshwaran, R. P. Srivastava and Navin Prakash for the Appearing parties.
The Judgment of the Court was delivered by DR. RAMESH YESHWANT PRABOO v. P. K. KUNTE [J. S. VERMA, J. ] 379 J. S. VERMA, J. 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 ? the 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 38, 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 lOO(l)(b) of the Act.
The appellant has been found guilty of the corrupt practices prescribed by sub-section (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 practice. 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-paras (a) to (d) of para 6 relate to first speech, sub-para (e) of para 6 relates to second speech and sub-para (I) 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 purities 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 noticee, Bal Thackeray. The noticee did not examine himself or any other witness in rebuttal. The decision of the High Court is based on this material. Dr. Prabhoo was not set up as candidate of the Shiv Sena which was then not a recognised political party for purposes of the Legislative As· sembly elections and, 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 practice 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 lOO(l)(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 practice 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 him· self, 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 propagan attempted to remove from the Hindu thought and practices elements of conuption and superstition and that led to the formation of different sects.
Bud-dha started Buddhism; Mahavir founded Jainism; Basava became the founder of Lingayat religion, Dnyaneshwar and Tukaram in-itiated the Var-kari cult; Guru Nanak inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bhakti cult; and as a result of the teachings a/Ramakrishna and Vivekananda, Hindu religion flowered into its most attractive, prowessive and dynamic from. If we study the teachings of these saints and religious rcforn1ers, we would notice an amount of divergence in their respective \1ews; 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 brodd sweep uf 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 Experi-ment in Western Civilisation" by Toynbee, pp: 48-49). The Co11Slitution-makers were fully conscious of this broad and • DR. RAMESHYESHWANT PRABOO v. P. K KUNTE [J. S. VERMA, J. ] 405 comprehensive character of Hindu religi. on; and so, while guar_an-teeing the fundamental right to freedom of religion, Explanation JI 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, J aina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. " (emphasis supplied) (from pages 259-266) Jn a later Constitution Bench decision in Commr. of Wealth Tax, Madras & Ors. v. 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 fonns of beliefs, faiths, practices and worship that it is difficult to define the tenn '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 tenn 'Hinduism' has been defined as meaning "a complex body of socia~ cultural and religi. ous belief of particular communities or religions. So long as law does not prohibit the fonnation of such parties and in fact recognises them for the purpose of election and parliamentary life, it would be necessary to remember that <in 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 infinnity 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 011 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 detem1ined in a fair, objective and reasonable manner.
In reading such docu1nents, it would be unrealis-tic to ignore the fact that when election meetings are held and appeals are made by candidates of opposing politidal 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 constrned 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 infagdev Singh Sidhanti v. Pratap Singh Dau/ta and Ors. , (1964] 6 SCR 750, it was reiterated as under : ".......... political issues which form the subject- matter of con-troversies 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' '! :'e not necessarily to be understood and construed narrowly, confined caly to the strict Hindu religious practices unrelated to the culture and ethos of DR. RAMESH YESHWANTPRABOO v. P. KKUNTE [J. S. VERMA,J. ]411 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 from 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 decision, these terms are misued 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 which 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 evid. ence adduced at the trial for proving those corrupt practices. The notice clearly stated that the noticee had the opportunity to cross-examine such witnesses as had already been examined and of calling evidence p in his defence and of being heard. The noticee 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 noticee 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 pe'. ;:ioner on the High Court's direction. The election petitioner Prabhakar 1'. ashinath Kunte (PW-1) was called for cross-examination on behalf ci the noticee. DR. RAMESHYESHWANTPRABOO v. P. K. KUNTE[J. S. VERMA,J. ]413 The noticee 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 noticee Bal Thackeray did not choose to enter the witness box and, therefore, the material present has to be examined without any denial by the noticee as a witness in the case.
There is no dispute that no material which was not given to the noticee 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 alsr undisputed. All this was furnished to the noticee Bal Thackeray. It i' difficult to visualise what prejudice could be caused to the noticee on these facts and how there could be any non-compliance of Section 99 of che 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 ..
Jso 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 guilty 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 arpears 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 uidence 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 guilty 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 guilty 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 noticee has to be equated with a party to the petition for this purpose and is 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 noticee 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 DR. RAMESHYESHWANTPRABOO v. P. K. KUNTE[J. S. VERMA,J. ]415 by· the proviso to sub-sectiOL< (1) of section 99 ;s the same and not more than that available to a party to the petition ~o 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 noticee Bal Thackeray had the same opportunity which the returned candidate Dr. Ramesh Yeshwant Prabhoo got as a respondent to the petition.
The noticee 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, th grievance made that specific portions of the material which formed the record at the trial was not precisely indicated to the noticee has "'' merit. It was clear from the pleading that the allegation against the noticee 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 noticee 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 notieee Bal Thackeray is, therefore, rejected ~nd the objection raised in the appeal of Bal Thackeray of non-cor,;pliance 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 10. 12. 87. The High Court has held that the speeches of 29. 11. 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, trans-lated 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 J anata Party, man like Nihal Ahmed is also in J anata 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 ad-judged in the light of the evidence including the state of Dr.
Ramesh Yeshwant Prabhoo without the version in evidence of Bal Thackeray. The case was argued even before us on a demurer treating the DR. RAMESHYESHWANTPRABOO v. P. KKUNTE[J. S. VERMA,J. ]417 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 qu;stion 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 your 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 sitid 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 ........ Mnslims 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 them 'Lande' ....... They sh? uld 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 I 418 I SUPREMECOURTREPORTS [1995]SUPP. 6S. C. R. I () same. At last you have the right to get rid of the difficulties faced ·A by your 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 said ahead (in the assembly). A 'Jawan' - like Prabhu should go there (in the assemu"l y ) •. •••. . - ' - Third speech of 10. 121987 ' ...... • 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 your vote ... ••.. You must sent only Dr. Ramesh Prabhllof Shiv -Sena, otherwise ! Hindus "ill be finished. It will not take much take for Hindustan , . to be green (ie. 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 him•elf also in these meetings. He has said nothing in bis statement to suggest that he did not consent to the ·. · , contents of the speeches of Bal _Thackeray. le 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. DR. RAMESH YESHWANT PRABOO v. P. K. KUNTE [J. S. VERMA, J. ] 419 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 the Hindus and the Muslims on the ground of religion. The first speech, therefore, also constitutes the 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-sections (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 tran.
slation 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 guilty of these corrupt practices. For the same reason, Bal Thackeray also is guilty of these corrupt practices and, therefore, liable to be named \ . A 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 . Jack of restraint in the language used and the derogatory terms used therein to refer to a group of people in an election speech is indeed to be condemned. The likdy 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 mthe election campaign. This is essential not only for maintaining decency and propriety ill the election campaign but also for the preservation of the proper and time honoured values forming part of our cultural heritage ancl for a free and fair poll in a secular democracy. The offending speeches in tlie 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 Jed 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. l. M. A. Appeals dismissed. •
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