IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A No. 14 OF 2016In

CIVIL APPEAL NO. 37 OF 1992

IN THE MATTER OF :

Abhiram Singh .........APPELLANT

VERSUS

C.D. Commachen through LRs & Ors. .......RESPONDENTS

AND

IN THE MATTER OF :

Teesta Setalvad & Ors. …..INTERVENORS

WRITTEN SUBMISSIONSON BEHALF OF INTERVENORS BY

SR. ADV. INDIRA JAISING

1

INDEX

Sr. Particulars Page

I. SECULARISM IN THE CONTEXT OF ELECTIONS& IMPACT ON S.123 RPA, 1951

3

II. PURPOSE OF CONTESTING ELECTIONS 13

III. INTERPRETATION S.123 (3) & (3A) RPA, 1951

III.A.Section 123 to be read as a whole

III.B Interpretation of “his religion”

III.C. When can it be said an appeal is made “on ground of religion, race, caste, language, or community”

C.1 Legitimate Use

C.2 Illegitimate Use

17

IV. WHETHER CONTESTING ON A TICKET OF THE PARTY WHICH HAS ISSUED A MANIFESTO AMOUNTS TO CONSENT TO THE CONTENTS OF THE MANIFESTO

41

V. WHAT IS HINDUTVA OBITER IN PRABHOO CASE

42

VI. REFERENCE TO BENCH OF FIVE JUDGES-

Terms of Reference proposed

49

2

WRITTEN SUBMISSIONSON BEHALF OF INTERVENOR BY

SR. ADV. INDIRA JAISING

I. SECULARISM IN THE CONTEXT OF ELECTIONS & IMPACT ON S.123 RPA, 1951

1. It is submitted that Section 123 of the Representation of

People’s Act, 1951 (RPA, 1951) must be interpreted in

context of secualrism being a basic feature of the Indian

constitution, so that political parties and their candidates

keep considerations of religion race caste language away

from elections.

2. It is submitted that secularism separates religion form State

and ensures that all citizens are treated equally and that they

are not discriminated on the ground of the religion, race, caste,

or langauge or community, to which they belong the Preamble

to the Indian Constitution and fundamental rights guaranteed

in the Indian Constitution ensure that the State has no religion

and that all political parties and their candidates are expected

to bare true faith and allegiance to the Constitution itself.

3. The Indian Preamble reads as:

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a 1[SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens:

3

JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation]; IN OUR CONSTITUENT ASSEMBLY this twenty- sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

4. Although the fundamental right to religion is guaranteed to

citizens, the Constitution ensures that religion operates in its

own realm and not in the realm of the secular, including

politics and in the formation of political parties.

5. This Hon’ble Court in Ziyauddin Barhanuddin Bukhari v.

Brijmohan Ramdass Mehra [(1976) 2 SCC 17] (ZB Bukhari

case) distinguished secular and religious activities, the former

being political and latter being personal, as follows in Paras. 42-

45:

“If all human activity in this world could be labelled "secular ", on the ground that it appertains to "this world" as against "the other world", all religious thought and activity could be described as "secular", as it takes place in this world. But, the term it not used so broadly. It is a convenient label to distinguish all that is done in this world without seeking the intervention or favour of or propitiating a Superhuman or Divine Power or Being from that which is done professedly to please or to carry out the will of the Divinity. Secularism, in the realm of Philosophy, is a system of Utilitarian ethics, seeking to maximize human happiness or welfare quite independently of what may be either religious or the occult. …Modern man, with his greater range of scientific knowledge and better understanding of his own needs as well as of the nature of the universe, attempts to confine religion to its proper sphere -that where he

4

reaches a satisfying relationship between himself and the Divinity he believes in so as to get an inner strength and solace which enable him to overcome psychological crises or fears when confronted with disturbing or disrupting events, such as a Death, or their prospects. He does not permit his religion, which should be essentially his individual affair, to invade what are properly the spheres of law, politics, ethics, aesthetics, economics and technology, even where its administration is institutionalized and it operates as a social force. The Secular State , rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices . It is neutral or impartial in extending its benefits to citizens of all castes and creeds. Maitland had pointed out that such a state has to ensure, through its laws, that the existence or exercise of a political or civil right or the right or capacity to occupy any office or position under it or to perform any public duty connected with it does not depend upon the profession or practise of any particular religion . Therefore, candidates at an election to a legislature, which is a part of "the State", cannot be allowed to tell electors that their rivals are unfit to act as their representatives on grounds of their religious professions or practices. To permit such propaganda would be not merely to permit undignified personal attacks on candidates concerned but also to allow assaults on what sustains the basic structure of our Democratic State. Our Constitution and the laws framed thereunder leave citizens free to work out happy and harmonious relationships between their religions and the quite separable secular fields of law and politics. Bill, they do not permit an unjustifiable invasion of what belongs to one sphere by what appertains really to another. It is for Courts to determine, in a case of dispute, whether any sphere was or was not properly interfered with, in accordance with the Constitution, even by a purported law.”

6. This Hon’ble Court in Keshavananda Bharati v. State of

Kerala [( 1973 ) 4 SCC 225] as per S.M. Sikri C.J., held that

secularism is part of the basic structure of the  Constitution in

the following Paras.282-283, 292:

5

“…It seems also to have been a common understanding that the fundamental features of the Constitution, namely, secularism, democracy and the freedom of the individual would always subsist in the welfare state.”

“The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government.

(3) Secular character of the Constitution;

(4) Separation of powers between the Legislature, the executive and the judiciary;

(5) Federal character of the Constitution.”

7. Further this Hon’ble Court in S. R. Bommai v. Union of India

[(1994) 3 SCC 1] (Bommai case) as per Sawant, J.held in

Para. 145 that the right to religion is subject to laws

governing secular activities such as the law governing politics

and that the Indian State is secular state and not a theocratic

State in the following words:

“Our Constitution does not prohibit the practice of any religion either privately or publicly. Through the Preamble of the Constitution, the people of this country have solemnly resolved to constitute this country, among others, into a secular republic and to secure to all its citizens…Article 25 of the Constitution guarantees to all persons equally the freedom of conscience and the right freely to profess, practice and propagate religion subject to public order, morality and health and subject to the other Fundamental Rights and the State's power to make any law regulating or restricting any economic,

6

financial, political or other secular activity which may be associated with religious practice. Article 26 guarantees every religious denomination or any section thereof the right [a] to establish and maintain institutions for religious and charitable purposes, [b] to manage its own affairs in matters of religion, [c] to own and acquire movable and immovable property and [d] to administer such property in accordance with law. Article 29 guarantees every section of the citizens its distinct culture, among others. Article 30 provides that all minorities based on religion shall have the right to establish and administer educational institutions of their choice. It prohibits the State from making any discrimination in granting aid to an educational institution managed by a religious minority. Under Articles   14,   15   and   16, the Constitution prohibits discrimination against any citizen on the ground of his religion and guarantees equal protection of law and equal opportunity of public employment. Article 44 enjoins upon the State to endeavour to secure to its citizens a uniform civil code. Article 51A casts a duty on every citizen of India, among others, [a] to abide by the Constitution and respect its ideals and institutions, [b] to promote harmony and the spirit of common brotherhood, among all the people of India, transcending, among others, religious and sectional diversities, [c] to value and preserve the rich heritage of our composite culture, [d] to develop scientific temper, humanism and the spirit of inquiry and reform; and [e] to safeguard public property and to abjure violence.These provisions by implication prohibit the establishment of a theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination. The State is enjoined to accord equal treatment to all religions and religious sects and denominations.”

8. The Nine Member Constitutional Bench in Bommai case

deliberated at length on the interpretation of Section 123 of

the RPA, 1951. These Paragraphs are of relevance. They are

being reproduced:

7

S R Bommai (Supra) at Para 149:

With respect, we are unable to accept this contention. Reading sub-sections (3) and (3A) of Sections 123 together, it is clear that appealing to any religion or seeking votes in the name of any religion is prohibited by the two provisions. To read otherwise is to subvert the intent and purpose of the said provisions. What is more, assuming that the interpretation placed by the learned counsel is correct, it cannot control the content of secularism which is accepted by and is implicit in our Constitution.”(this means that the Corrupt practice is not confined to an appeal to the religion of the candidate but to any religion ) (question can we argue that the word “his” refers to the religion of the voter or can the word “his “refer to “his agent “or his party manisfesto )

S R Bommai (Supra) at Para 187:

“Politics in positively secular State is to get over their religion, in other words, in politics a political party should neither invoke religion nor be dependent on it for support or sustenance. Constitution ensures to the individual to protect religion, right to belief of propagate teachings conducive for secular living, later to be controlled by the State for betterment of human life and progress. Positive secularism concerns with such aspects of human life.”

S R Bommai (Supra) at Para 190:

“Article 25 inhibits the Government to patronise a particular religion as State religion overtly or covertly. Political party is, therefore, positively enjoined to maintain neutrality in religious beliefs and prohibit practices derogatory to the Constitution and the laws. Introduction of religion into politics is not merely a negation of the constitutional mandates but also positive violation of the constitution obligation, duty, responsibility and positive prescription of prohibition specifically enjoyed by the Constitution and the R P Act. A political party that seeks to secure power through a

8

religious policy or caste orientation policy disintegrates the people on grounds of religion and caste. It divides the people and disrupts the social structure on grounds of religion and caste which is obnoxious and anathema to the constitutional culture and basic features. Appeal on grounds of religion offends secular democracy.”

9. In other words, it should have been clear to anyone that under

our Constitution, there shall be no religion in politics just as

there shall be no politics in religion.

S R Bommai (Supra) at Para 196:

“In a secular democracy, in other words a flagrant breach of constitutional features of secular democracy. It is, therefore, imperative that the religion and caste should not be introduced into politics by any political party, association or an individual and it is imperative to prevent religious and caste pollution of politics”. A religious talk, may be a dissertation or a discourse or even hoping for a religious State, on the basis of any so-called exercise of fundamental right u/Article 25, in an election meeting which is a political activity, would undoubtedly pollute politics, and can only be construed as an appeal to vote on the basis of religion.

10. Referring to S. 123 (3) & (3A) of the Act, the Court in S R

Bommai (Supra) at Para 189 said:

“A political party, therefore, should not ignore the fundamental features of the Constitution and the laws. Even its manifesto with all sophistication or felicity of its language, a political party cannot escape constitutional mandate and negates the abiding faith and solemn responsibility and duty undertaken to uphold the Constitution and laws after it was registered under Section 29-A. Equally it / they / should not sabotage the same basic features of the Constitution either influencing the electoral

9

process or working the Constitution or the law. The political party or the political executive securing the governance of the State by securing majority in the legislature through the battle of ballot throughout its tenure by its actions and programmes, it is required to abide by the Constitution and the laws in letter and spirit”.

S R Bommai (Supra) at Para 252:

“Political parties, group of persons or individuals who would seek to influence electoral process with a view to come to political power, should abide by the Constitution and the laws including secularism, sovereignty, integrity of the nation. They / he should not mix religion with politics. Religious tolerance and fraternity are basic features and postulates of the Constitution as a scheme for national integration and sectional or religious unity. Programmes or principles evolved by political parties based on religion amounts to recognizing religion as a part of the political governance which the Constitution expressly prohibited. It violates the basic features of the Constitution.”

11. This Hon’ble Court has in Dr. Vimal v. Bhaguji [(1996) 9

SCC 351]has also held similarly on the object of S.123 RPA,

1951 in Para 20. It has held the object of S.123(3) and (3A) to

be maintaining a secular state and purity of elections:

“…We may also indicate here that in order to maintain national integrity and amity amongst the citizens of the country and to maintain the secular character of the pluralistic society to which we belong Section 123 and 123(3A) of the Representation Act have been incorporated. For maintaining purity in the election process and for maintaining peace and harmony in the social fabric, it becomes essentially necessary not only to indict the party to an election guilty of corrupt practice but to name the collaborators of such corrupt practice if there be any.”

10

12. Further, this Hon’ble Court in Patangrao Kadam v. Prithviraj

Deshmukh [(2001) 3 SCC 594] again held purity of elections

and democracy to be objects of enacting S.123 RPA, 1951 in

Para. 13:

“Corrupt practice is not confined only to a returned candidate, it can be committed by the persons mentioned in Section 123 and no one can be allowed to escape consequences of Section 8A, the object being to maintain the purity in the election process. Fair and free elections are essential requisites to maintain the purity of election and to sustain the faith of the people in election itself in a democratic set up. Clean, efficient and benevolent administration are the essential features of good governance which in turn depends upon persons of competency and good character. Hence those indulging in corrupt practices at an election cannot be spared and allowed to pollute the election process and this purpose is sought to be achieved by these provisions contained in the RPA.”

13. Further this Hon’ble Court has commented on the concept of

secularism in Bal Patil and Anr v. Union of India [(2005) 6

SCC 690]wherein it was held in Para 37:

“Our concept of secularism, to put in a nutshell, is that the “State” will have no religion. The States will treat all religions and religious groups equally and with equal respect without any manner interfering with their individual rights of religion, faith and worship.”

14. This Hon’ble Court in MP Gopalakrishna Nair v. State of

Kerala [(2005) 11 SCC 45] with regard to Indian secularism

stated the object of inserting secularism in the Indian Preamble

to be prohibit the formation of a theocratic state and enable

citizens to exercise their free and fair franchise uninfluenced

11

by any corrupt practices and communalism in politics, and to

promote democracy in Paras 18-19:

“India is a secular country. Secularism has been inserted in the Preamble by reason of the Constitution 42nd Amendment Act, 1976. The object of inserting the said word was to spell out expressly the high ideas of secularism and the integrity of the nation on the ground that these institutions are subjected to considerable stresses and strains and vested interests have been trying to promote their selfish ends to the great detriment of the public good.A 9-Judge Bench of this Court in S.R. Bommai Vs. Union of India [(1994) 3 SCC 1] observed:"Rise of fundamentalism and communalisation of politics are anti-secularism. They encourage separatist and divisive forces and become breeding grounds for national disintegration and fail the parliamentary democratic system and the Constitution. Judicial process must promote citizens' active participation in electoral process uninfluenced by any corrupt practice to exercise their free and fair franchise. Correct interpretation in proper perspective would be in the defence of the democracy and to maintain the democratic process on an even keel even in the face of possible friction, it is but the duty of the court to interpret the Constitution to bring the political parties within the purview of constitutional parameters for accountability and to abide by the Constitution, the laws for their strict adherence. It is now well-settled: (i)The Constitution prohibits the establishment of a theocratic State. (ii) The Constitution is not only prohibited to establish any religion of its own but is also prohibited to identify itself with or favouring any particular religion.(iii) The secularism under the Indian Constitution does not mean constitution of an atheist society but it merely means equal status of all religions without any preference in favour of or discrimination against any one of them.”

12

15. This Hon’ble Court has also held the same in S. Subramaniam

Balaji v. State of Tamil Nadu [(2013) 9 SCC 659]in Paras

56-59:

“…For deciding the issue whether the contents of the political manifesto would constitute a corrupt practice under Section 123 of RP Act, it is imperative to refer to the intention of the legislature behind incorporating the respective section. The purpose of incorporating Section 123 of the RP Act is to ensure that elections are held in a free and fair manner.”

16. Thus, it is submitted that secularism is a foundational feature

of the Indian Constitution and fortifies the wall of separation

between State and politics on one hand and religion on the

other hand, and Section 123 (3) and (3A) of the RPA, 1951

ought to be interprered accordingly.

II. PURPOSE OF CONTESTING ELECTIONS

17. India is a secular and representative democracy based on

adult franchise (Article 326 of the Indian Constitution). This

means that the State has no religion, although individuals may

have their own right to religion guaranteed (Article 25 of the

Indian Constitution). Political parties capture state power

through the process of elections as held by Justice Jeevan

Reddy inBomai case in Paras. 310-311:

“Given the above position, it is clear that if any party or organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the

13

secular philosophy of the Constitution would certainly be guilty of following an unconstitutional course of action. Political parties are formed and exist to capture or share State power . That is their aim. They may be associations of individuals but one cannot ignore the functional relevance . An association of individuals may be devoted to propagation of religion; it would be a religious body. Another may be devoted to promotion of culture; it would be a cultural organisation. They are not aimed at acquiring State power, whereas a political party does. That is one of its main objectives. This is what we mean by saying 'functional relevance'. One cannot conceive of a democratic form of government without the political parties. They are part of the Political system and constitutional scheme. Nay, they are integral to the governance of a democratic society. If the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart. That is the constitutional injunction. None can say otherwise so long as this Constitution governs this country. Introducing religion into politics is to introduce an impermissible element into body politic and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status, at any rate, a less favourable position. This would be plainly antithetical to Articles   14 to 16,   25   and the entire constitutional scheme adumbrated hereinabove. Under our Constitution, no party or organisation can simultaneously be a political and a religious party. It has to be either. Same would be the position, if a party or organisation acts and/or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party.”

14

18. It is submitted that it is for this precise reason that the RPA,

1951prohibits an appeal made, to the voter on the grounds of

religion, race, caste, language, by the candidate directly or

indirectly by any other person on his behalf. Similarly, the RPA

places restrictions on recognized and registered political partie

sto committ themselves to the constitution and to secularism.

19. The following provisions are relevant under the RPA, 1951:

“Section29A. Registration with the Election Commission of associations and bodies as political parties.—

…

(5) The application under sub-section (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.”

“S.123 Corrupt practices.—The following shall be

deemed to be corrupt practices for the purposes of this

Act:— 

…(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person 5[with the consent of the candidate or his election agent], with the free exercise of any electoral right: Provided that—

15

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who—(i) threatens any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;(b) a declaration of public policy, or a promise of publicaction, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause. 6[(3) The appeal by a candidate or his agent or by any other person with the consent of a candidates or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate: 7[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.]

(3) The appeal by a candidate or his agent or by any other person with the consent of a candidates or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that 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.”

16

“(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.]

(4) The publication by a candidate or his agent or by any other person 9[with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal,10[***] of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate’s election.……”

20. It is submitted that Seciton 29A and Section 123(3) (3A) of

RPA, 1951create a wall of separation between a candidate on

the one hand and religion on the other and consequently

between religion and the state. It is submitted that the no

candidate or political party can make an appeal to votes on

grounds of religion, race, caste or language, or seek to set up

a theocratic state as such an appeal would be unconstitutional

since secularism is a basic feature of the constitution.

III. INTERPRETATION OF SECTION 123

III.A. Section 123 to be read as a whole

21. It is submitted that Section 123 of the RPA, 1951 must be read

as a whole to understand its object, true meaning and

17

content. Almost all election petitions allege corrupt practices

under Sections 123(2), (3) and (4) of the RPA, 1951. These

sections together form a composite scheme as often an

election speech or poster or leaflet which makes an appeal to

the electorate on the ground of religion, race, caste or

language has the effect of unduly influencing a voter to vote

on these grounds (Section 123(2) threatening divine

displeasure)or is incendiary and divisive and tends to promote

feelings of enmity and hatred among different classes of

citizens (Section 123 (3A): See Prabhoo case alleging that

the first Hindu State would be established in Maharashtra).

Candidates also tend to make statements directly or indirectly

through other persons, which are false, to the knowledge of

the person making the statement in relation to the personal

character of the opponent (Section 123 (4): See ZB Bhukari

casealleging that the rival candidate was not a true Muslim) .

The object of all the subsections of S.123 RPA, 1951 is to

maintain the purity of the election process and to ensure that

the constitutional values of secularism are not eroded in the

election process, by appealing on grounds of religions,

languages, and race or caste identity of the voters or the

candidates.

18

22. It is submitted that S. 123 of the RPA, 1951 places restrictions

on political speech in the interest of maintaining the integrity

of the nation (Article 19(2) of the Constitution).

23. It is submitted that S. 123 of the RPA, 1951 must be

interpreted in the light of these observations.

III.B. Interpretation of “His Religion”

24. While S.123(3) uses the expression “on the ground of his

religion, race, caste, community or language”, sub section (3A)

uses the expression “an attempt to create feelings of enmity

or hatred between different classes of citizens of India on

grounds of religion, race, cast, community or language ….”.

25. Given that the “mischief” that both sub sections seek to

prevent is the same, it is submitted that the words “his

religion” must carry the same meaning in both sub sections,

namely to separate religion, race, caste, or language, from

state power and to maintain the integrity of the country based

on common citizenship and the values of secularism. Any

other reading of S.123(3) would lead to absurd consequences.

26. The expression “his religion” has to be interpreted on a

conjoint reading of sub section (3) and (3A) of S.123 and will

include direct appeals by the candidate or indirect appeals by

his supporters and appealing to any religion, his own or that of

19

someone else, for votes. Any other interpretation will not only

defeat the object of the section but also produce illogical

results.

27. In Kanti Prasad Yagnik v. Parshottamdas Ranchoddas

Patel [(1969) 1 SCC 455] (Kanti Prasad case), an appeal

was made not to vote for a rival congress candidate since the

Congress permitted slaughtering of cows and bullocks [Para.

26-27]. This was held to be not a corrupt practice under

Section 123(3) for the reason that the expression “his religion”

was interpreted to mean the religion of the candidate and no

one else in Para. 25.

“25. One other ground given by the High Court is that “there can be no doubt that in this passage (Passage 3) Shambhu Maharaj had put forward an appeal to the electors not to vote for the Congress Party in the name of the religion.” In our opinion, there is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name of religion. What Section 123(3) bars is that an appeal by a candidate or his agent or any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion i.e. the religion of the candidate.”

28. It is submitted that this judgment requires to be overruled

since its erroneously interprets “his religion”to be confined to

the religion of the candidate and such interpretation enabled

the illegitimate use of religion in the speech. It is to be noted

that in Prabhoo case reliance was placed on Kanti Prasad

20

case to come to the erroneous conclusion that the expression

“his religion” refers only to of the religion of the candidate.

29. Reliance has been placed in the Ramesh Yeshwant Prabhoo

v. Prabhakar Kunte [1996 (1) SCC 130] (Prabhoo

case)on the speech of the law minister to argue that the

words “his religion” in S.123(3) of the RPA, 1951 refer to the

religion of the candidate alone and further that the appeal

must be made by the candidate. Para 14 read as:

“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.

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.

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.

21

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 guise 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.

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.

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 Garhwali, 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 is not elsewhere. …”***… 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

22

this. The preservation of the minorities' rights and so on is a different and a wider question.***… 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 your fundamental rights, to preserve your 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)”.

30. It is submitted that the law minister was addressing the

apprehension of the member of the Parliament that the

expression “his religion” would prevent a person from making

a legitimate reference to language during an election speeech.

It is in this context that a reference was made to Article 29 of

the constitution. The law minister went on to clarify the

legitimate and illegitimate appeal to language for the purpose

of garnering votes. Theaforementioned paragraph passages in

Para 14cannot be an aid to interpretation of “his religion” as

is sought to be suggested. This is also evident from the actual

outcome in Prabhoo case, where Bal Thackeray was held

23

guilty of a corrupt practice under S.123(3) and (3A) for having

made illegitimate use of religion during an election speech. It is

therefore submitted that the above observations in Prabhoo

case do not constitute the ratio of the case, nor are they an

authority for the propisition that only an appeal by a candidate

for votes based on his own religion would be a corrupt practice

within the meaning of S.123(3).

31. This Hon’ble Court in Harmohinder Singh v. Ranjit Singh

Talwandi [(2005) 5 SCC 46](Harmohinder case)while

holding that an appeal for votes by Sikh religious leaders on

behalf of Sikh cnadidate was not a corrupt practice as there

were no averments in the petition on the religion of the

candidate, cited the Prabhoo case and interpreted “his

religion” not to mean “any” religion but religion of the

candidates (including rival candidates) in the following terms in

Paras. 10-12:

“The question arising for decision in this appeal is no more res integra as the point is covered by several decided cases, the most instructive one being Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and Ors. [(1996) 1 SCC 130] . The emphasis is laid on the word 'his' as it occurs in Section 123(3) of the Act which word was not to be found in the original draft of the provision as enacted but came to be inserted into the text of the provision by the Act 40 of 1961. Reference has been made to the Parliamentary debates and the reasons ascribed by the then Law Minister for the amendment while moving the Bill in the Parliament. The Court has then held that the word 'his' used in Sub-section (3) of

24

Section 123 of the Act must have significance and it cannot be ignored or equated with the word 'any' to be brought within the net of Sub-section (3). 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. 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.”

32. It is submitted that Harmohinder case is required to be

overruled in as much as it is based on an incorrect reading of

the Prabhoo case as also an incorrect understanding of the

expression “his religion”.

III.C. When can it be said an appeal is made “on ground of religion, race, caste, language or community”

33. There is ample guidance in the decision of the Court to indicate

when a reference to religion is permissible in an election

speech and when it is not.

34. It is submitted that not all reference to religion, race, caste, or

language in an election speech is corrupt practice. It is

submitted that a reference to a group dicriminated on the

ground of religion, race, caste, or language coupled with the

25

promises to remove the discrimination and correct an

imbalance will not be an appeal on the ground of religion since

the thrust of the speech will be to promote secularism.

C.1 Legitimate Use

35. The Prabhoo case itself gives an indication as to what are

permissible references to religion. Para 16 read as follows:

“16. 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.”

36. In Para 18 the court in Prabhoo case said:

“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

26

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.”

37. However, it is also been held by this Hon’ble Court that under

the guise for protecting or own religion one cannot embark on

personal attacks or whip up animosities or irrational fears.

38. In Para. 22 while referring to Z.B Bhukari case, it was held

in the Prabhoo casethat:

“Under the guise of protecting your own religion, culture or creed you cannot embark on personal attacks on those of others or whip up low herd 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.”

39. This Hon’ble Court in Jagdev Singh Sidhanti v. Pratap

Singh Dhaulta [(1964) 6 SCR 750 (Jagdev case)took the

same approach to the question whether the reference to

language fell within S.123(3). In 1957 the Govt. of Punjab

made Punjabi language in the Gurmukhi script compulsory in

schools. This led to wide spread agitation against the policy of

the government to resist the program and to secure redressal

of their grievances. The Harayan Lok Samiti was formed and an

appeal to the electorate to secure the reversal of the govt.

policies was made during an electoral speech. The Supreme

27

Court stated that it was not corrupt practice. Paras. 26and 28

reads as:

“26.….These exhortations to the electorate to induce the Government to change their language policy or that a political party will agitate for the protection of the language spoken by the residents of the Haryana area do not fall within the corrupt practices of appealing for votes on the ground of language of the candidate or to refrain from voting on the ground of language of the contesting candidate.”

“28….It is open to a candidate in the course of his election campaign to criticise the policies of the Government including its language policy and to make promises to the electorate that if elected he will secure a reversal of that policy or will take measures in the legislature to undo the danger, real, apprehended or even fancied, to the language of the people. The object of the Hariana Lok Samiti was evidently to resist the imposition of Punjabi in the Hariana region and that object appears to have been made the platform in the election campaign. Thereby it could not be said that the voters were asked not to vote for Daulta on the ground of his language, assuming that it was other than Hindi. Nor can it be said that it was an appeal to the voters to vote for Sidhanti on the ground of his language.”

“29. The evidence which has been referred to by the High Court regarding the speeches made by Badlu Ram and Harphul Singh on December 10, 1961, at Beri on the face of it shows that the speeches were an attack against Daulta in respect of his political conduct, behaviour and beliefs. The speeches made at the meetings at Sampla, Ladpur and Majra Dubaldhan read like political harangues addressed to the electorate to vote for the candidate who would project the language of the people of Hariana. At Bahadurgarh also Sidhanti is stated to have claimed that he was opposed to the Government and its supporter Daulta in the matter of the language movement. The evidence also showed that Sidhanti had appealed to the

28

voters to vote for him because he was actively associated with the Hindi agitation movement and that he was championing the cause of Hindi and resisting the imposition of a rival language Punjabi and thereby suggesting that Daulta was hostile to the cause of Hindi language and was supporting the Punjabi language. The criticism by Sidhanti in his appeal to the electorate related to the political leanings of Daulta, and his support to the policy of the Government and was not personally directed against him. Nor did Sidhanti appeal to the voters to vote in his favour on account of his language. Such political speeches espousing the cause of a particular language and making promises or asking the people to protest against the Government of the day in respect of its language policy is not a corrupt practice within the description of corrupt practice under Section 123(3) of the Act.”

40. It is submitted that the Jagdev case in an example of the

legitimate use of language in election speech, since Punjabi

was being compulsorily imposed on Hindi speaking people,

violating their right to conserve their own language.

41. It is submitted that the above case lays down guidelines as to

when reference to language or religion would not be an appeal

under S.123(3) on grounds of religion or language under the

RPA, 1951.

C.2 Illegitimate Use

42. The following are cases of illegitimate use of religion etc in an

election speech. In Ambika Sharan Singh v. Mahant

Mahadeva, (1969) 3 SCC 492 (Ambika Sharan case), this

court held that the appellant was guilty of the corrupt practice

29

of having canvassed votes on the basis of his Rajput caste. The

alleged corrupt practice was that that if he was elected he

would become a minister, that one Satyendra Narain Singh,

also a Rajput, would become the Chief Minister and that with

the two of them in the cabinet they would establish Rajput Raj

in the State and advance the interests of Rajputs. [Para. 6]

The court noted in Para. 11 that there were a large number of

Rajputs in his constituency. The court held that in making such

an appeal, the candidate had committed a corrupt practice

within S.123(3). Referring to the object of S.123(3) the court

held in Para. 12 that:

“12. Indian leadership has long condemned electoral campaigns on the lines of caste and community as being destructive of the country's integration and the concept of secular democracy which is the basis of our Constitution. It is this condemnation which is reflected in Section 123(3) of the Act. In spite of the repeated condemnation, experience has shown that where there is such a constituency it has been unfortunately too tempting for a candidate to resist appealing to sectional elements to cast their votes on caste basis. The contention of Counsel, however, was that there was on the other hand the danger of a frustrated candidate mustering a number of his followers to testify falsely in a vague manner that his opponent had campaigned on the basis of his caste or community. Therefore, before such an allegation is accepted, the Court must be on guard against such a possibility and must demand adequate particulars. A witness deposing to such an allegation must point out when, where and to whom such an appeal was made. That, said Counsel, was not done and therefore the evidence of witnesses however numerous should not have been accepted.”

30

43. The court held that an appeal by a candidate on the ground

that he would establish a Rajput Raj was a direct appeal on

grouns of caste and such appeal ran counter to secular

democracy.

44. In Rahim Khan v. Khurshid Ahmed (1974) 2 SCC 660 the

controversy was between two Muslim candidates in a

constituency dominated by a Muslim population. The alleged

corrupt practice under S.123(3) was the distribution of a

pamphlet which read as follows in Para.26:

“We may as well set out here Exhibit PW 4/3, the offending handbill:

Introduction of Ch. Khurshid Ahmed and some Questions to him.

1. You being a Muslim got dug a grave of a Mohammadan and got the dead body out due to your personal enmity, which is against Islam and its Chariat. Do you still claim yourself to be a Muslim?

2. Since you have become a Minister you have taken bribery from the public for each work of the public. Do you call this public service?

3. You being Health Minister violated the modesty of numerous lady doctors, and nurses and till they did not surrender their body to your lust you did not do any of their works. Do you want to be elected again so that you can continue your debauchery?

31

4. You while being a Minister got some Muslims of village Utawad arrested on allegations of cow slaughter and made them to eat meat of the pig. Do you want to be elected again so that you may be able to make all Muslims eat the meat of the pig?

Khurshid Sahib! public wants to tell you, that you yourself have become a ‘Kafir’ by eating the meat of the pig, but the remaining Muslims do not want to become ‘Kafirs’ at your hands.

Public should pay attention and should give crushing defeat to such a ‘Kafir’. I am rightly entitled to your vote.

Rahim Khan”

45. This court held that the candidate had made an appeal not to

vote for the rival candidate on grounds of being or not being a

true Muslim calling his opponent a Kafir. It further held that the

candidate had committed corrupt practice under Sections

123(3), (4).

“44. In the ultimate analysis we hold that the appellant did get the handbills, Exhibits PW 4/3 printed and distributed among his constituents. Thereby he made statements which were untrue and which he did not believe to be true and knew to be false, about the rival candidate with a view to diminish the latter's prospects in the election. We further hold that Exhibit PW 4/3 constitutes an appeal to religion for the purpose of voting for and against. Thus, under these two heads, a contravention under Section 123 of the Act has been committed and for these two corrupt practices the unseating of the appellant becomes inevitable.”

32

46. In determining what is appeal to religion, the court held it to

depend on times and circumstances, the ethos of the

community and other such factors. Para. 26 reads as:

“What is appeal to religion depends on time and circumstance, the ethos of a community, the bearing of the deviation on the cardinal tenets and other variables. To confound communal passion and crude bigotry with religion is to sanctify in law what is irreligion in fact.”

47. InPara. 36 in ZB Bukhari casethe following appeal was

made:

“Chagla had advocated the inclusion of Hindus in the Haj Committee. Bukhari alleged that Chagla's wife, a Hindu lady called Nalini, his son Ashok, as well as Chagla, used to attend the mosque as well as the temple. Bukhari alleged that Chagla and his family pleased neither Allah nor Bhagwan. In other words, Bukhari, apart from making a direct attack on the alleged religious beliefs and practises 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.”

48. This court held it to be corrupt practice. It is submitted that the

reference to religion was a direct appeal not to vote on

grounds of the religion of the rival candidate. Moving further

the court in Para. 41 said that in order to determine whether

it was an appeal on grounds of religion the court had to

primarily examine the cloak which the appeal wears to parade

in and not only what lies beneath it. Para. 41 reads as follows:

33

“Learned counsel for the appellant submitted that if we considered the substance of what was said by the appellant it would only amount to a plea that the voters should support one who opposes any change in Muslim personal law as against another who wanted to change it. If change of personal law is, it is suggested, only a secular matter, opposition to its change could not become an appeal on grounds of religion. To accept this argument would be to view the appeal to the voters after turning it upside down, or, perhaps, inside out. We are not concerned so much with the real nature of what is opposed or supported as with the grounds on which a candidate claims support over a rival. We have to primarily examine the cloak which the appeal wears to parade in and not only what lies beneath it.”

49. This Hon’ble Court has thus formulated a test not only of

determining whether an appeal is on grounds of religion but

also whether an appeal made in the benign guise of promoting

a religion or non-reform or reform of personal laws is also in

substance an appeal on grounds of religion under S.123(3). In

this case the appellant was held to have committed corrupt

practice 123(2) [Para. 47] and 123(3) [Para. 36] and 123(3A)

[ Para. 35].

50. InS. Haracharan Singh v. S. Sajjan Singh [(1985) 1 SCC

370] the court was assessing a controversy between two Sikh

candidates. It was alleged that Hukamnamas were issued

urging the voters to vote for Respondent 3 and not to vote for

the appellant. It was further alleged that that speeches were

delivered by persons appealing to the voters that as

34

Respondent 3 was the candidate of the Akal Takht and his

nomination was supported by the Hukamnama of Akal Takht,

the people should vote for him and not to vote for him would

be against the tenets of the Sikh religion and would be a

blasphemous act against the Sikh religion. [Para. 6, 22, 23].

The question that arose was whether this was an appeal on

grounds of religion. The court held that taking into account the

totality of the evidence, some communications from the Akal

Takht and the editorials in the Akal Times that the said appeal

was a corrupt practice under S.123(3) as it was made in the

name of religion in Para 64 and Para 65. It is submitted that

this is a case of a direct appeal on the grounds of religion

having regard to the fact that the appeal was that the voters

shall vote for the candidate who is a true Sikh and voting

against him will be against the Sikh religion.

51. This Hon’ble Court in Dr Das Rao Deshmukh v. Kamal

Kishore [(1995) 5 SCC 123] (Dr Das case)held in Para. 16

that the use of a poster with the consent of the candidate

reading as “to teach Muslims a lesson” by a Hindu candidate

and to thus vote for such Hindu candidate was an appeal for

votes on the grounds of religion and hence a corrupt practice

under Sections 123(3) and (3A) of the RPA, 1951:

35

"After giving our anxious consideration to the facts and circumstances of the case and contentions made by the respective counsel for the parties, it appears to us that in the instant case, it has been convincingly established that the appellant has permitted to display poster Ext. 0.20 for the purpose of his election campaign. In the said poster, appeal to vote for the appellant was made for the purpose of teaching a lesson to muslims. Such appeal, to say the least, was potentially offensive and was likely to rouse passion in the minds of the voters on communal basis. Such appeal to teach a lesson was also likely to bring disharmony between the two communities namely the hindus and the muslims and offended the secular structure of the country. In our view, use of such poster by itself is sufficient to hold that the appellant had indulged in corrupt practice under Section 123(3) and 123(3A) of the Representation Act. We may, however, indicate that speeches delivered in the election meeting by leaders of political parties should be appreciated dispassionately by keeping in mind the context in which such speeches were made. This Court has indicated a note of caution that in election speeches appeals are made by candidates of opposing political parties often in an atmosphere surcharged with partisan feelings and emotions. Use of hyperboles or exaggerated language or adoption of metaphors and extravagance of expression in attacking one party of a candidate are very common and court should consider the real thrust of the speech without labouring to dissect one or two sentences of the speech, to decide whether the speech was really intended to generate improper passions on the score of religion, caste, community etc. In deciding whether a party or his collaborators had indulged in corrupt practice regard must be had to the substance of the matter rather than mere form or phraseology. In Kultar Singh's case (supra), this Court has recognised that there are several parties whose membership is either confined to or predominantly held by members of some communities or religion and that an appeal made by candidates of such parties for votes may in an indirect way concavely be influenced by considerations of religion, race, community or language. So long as the law recognises such parties for the purpose of election and parliamentary life, this situation cannot be avoided. Such view has also been reiterated in later decisions of this Court. It has been very strenuously contended by

36

the learned Counsel for the appellant that appeal to vote for 'hindutwa' should not be confused with appeal to vote only for a member of one community namely the hindus. Criticism of partisan treatment meted out to the hindus by the ruling congress party or appeasement policy in favour of one community or followers of a particular religion impairing national integrity and appeal to oppose such improper and anti-national policy should not be held to be an appeal to vote only on the basis of a particular religion. It has been contended that the thrust of the speeches was that in equal treatment meted out to hindus and deliberate hurting of sentiments of hindus have encouraged divisive forces and anti-national elements in the country and hindus should be aware of such divisive forces and try to unite against such divisive and anti-national forces in selecting proper candidate who would safeguard the unity and integrity of the country. In our view, it is not necessary to consider the philosophy of hindu religion and its tenets of tolerance and respect for different religious faiths for the purpose of appreciating whether appeals was really made for hindutwa which is something different from outward practices and some of the followings professed by followers of hindu religion. In the instant case, we have already indicated that the appellant had given publicity to the voters by exhibiting the poster Ext. 0.20 which was per se highly offensive and potentially vulnerable and was likely to bring hatred and misunderstanding between the two communities, namely, the hindus and the muslims. In our view, the poster containing an appeal to vote for the appellant 'to teach the muslim a lesson' cannot be justified in any manner even by giving reasonable latitudes in election speeches.”

52. This Hon’ble Court in Prabhoo case was dealing with an

allegation in Para 57 where in speeches appealing for votes

were made. They read as follows:

“57. 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

37

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 Prabhoo 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 said stand we will step in the Legislative Assembly. … Unless we step forward strongly it would be difficult for us to live because there would be war of religion. … Muslims will come. What will you Hindu (people) do? Are you going to throw ‘Bhasma’ (i.e. ashes) on them? … We won't mind if we do not get 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 should bear in mind that this country is of Hindus, the same shall remain of Hindus. … if Shiv Sena comes to power and if the morchas come ---- first of all (we) shall make them come. Everybody will have to take ‘diksha’ (i.e. initiation) of Hindu religion. …”

Second speech of 9-12-1987

“… The victory will not be mine or of Dr Prabhoo or of Shiv Sena but the victory will be that of Hinduism. You will be instrumental in victory and you should become instrument for the same. At last you have the right to get rid of the difficulties faced by 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 Prabhoo who is contesting the election in the name of religion sent ahead (in the assembly). A

38

‘Jawan’ — like Prabhoo should go there (in the assembly). …”

Third speech of 10-12-1987

“… It will do, if we do not get a vote from any Muslim. If anybody from them is present at this place he should think for himself. I am not in need of their votes. But I want your vote. … You must send only Dr Ramesh Prabhoo of Shiv Sena, otherwise Hindus will be finished. It will not take much take (sic) for Hindustan to be green (i.e. Pakistan?). …”

53. This Court in Para. 61 held that all the speeches amount to a

corrupt practice under S.123(3) since the appeal was to vote

on grounds of religion of Mr. Prabhoo as he was a Hindu.

“61. 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 (3-A) 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 in accordance with Section 99 of the R.P. Act of which due compliance has been made in the present case.”

54. This Hon’ble Court while commenting on the object sought to be

achieved by Section 123 RPA in Prabhoo case has also held the

same in Para 22:

“It seems to us that Section 123, sub-sections (2), (3) and (3-A) were enacted so as to eliminate, from the electoral process,

39

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”

55. This Hon’ble Court in Manohar Joshi v. Nitin Bhaurao 1996

1 SCC 169 (Manohar case)was dealing with an allegation of

corrupt practice under S.123(3) and (3A) [Para.31]. The

appellant denied that he made the speeches and put the

respondent to strict proof thereof. The High Court framed the

issued as reproduced in Para. 32. The contentions of the

respondent in Para. 37 was that when a party contests on a

ticket of a party, his consent must be assumed. This contention

was rejected. This court held that as follows in Para.62:

“62. We would now consider the only surviving question based on the pleading in para 30 of the election petition. The specific allegation in para 30 against the appellant is that in the meeting held on 24-2-1990 at Shivaji Park, Dadar, he had stated that “the first Hindu State will be established in Maharashtra”. It is further pleaded therein that such meetings were held at Khaddke Building, Dadar on 21-2-1990, Prabhadevi on 16-2-1990, at Kumbharwada on 18-2-1990 and Khed Galli on 19-2-1990. These further facts are unnecessary in the context because the maximum impact thereof is to plead that the same statement was made by the appellant in the other meetings as well, even though such an inference does not arise by necessary implication. In our opinion, a mere statement that the first Hindu State will be established in Maharashtra is by itself not an appeal for votes on the ground of his religion but the expression, at best, of such a hope. However despicable be such a statement, it cannot be said to amount to an appeal for votes on the ground of his religion. Assuming that the making of such a statement in the speech of the appellant at that meeting

40

is proved, we cannot hold that it constitutes the corrupt practice either under sub-section (3) or sub-section (3-A) of Section 123, even though we would express our disdain at the entertaining of such a thought or such a stance in a political leader of any shade in the country. The question is whether the corrupt practice as defined in the Act to permit negation of the electoral verdict has been made out. To this our answer is clearly in the negative.”

56. It is submitted that these observations are a clear appeal to

vote on the ground of religion and amount to corrupt practice

under Section 123(3) and required to be overruled as it is also

contrary to the ruling in the Ambika Sharan case which has

not been noticed.

57. A review of the above mentioned cases, of when an appeal

amounts to an appeal “on grounds of religion” and when its

doesn not leads to the following conclusions:

a. An appeal on the grounds of religion, race, caste, or

language can legitmately be made on behalf of a

discriminated group whether based on religion, race,

caste, language or sex, coupled with the promise to

reverse the discrimination. Hence when the appeal is

contextualized in a rights framework, in particular

fundamental rights, and for the reversal and redressal of

constitutional wrongs it would not fall under the meaning

of corrupt practice within S.123(3).

41

b. In judging whether or not an appeal or an attack on the

personal character of a candidate is being made for the

purpose of redressing a costitutional wrong, the court will

look at the context in which it is made and not just the

form of the appeal but the substance of it.For example an

appeal which may appear benign for the reform of

personal law may in fact be an attack on the personal

character of the candidate on grounds of religion (as in

ZB Bukhari case).

c. An appeal to protect and promote the rights of a

persecuted group would not be an appeal on the grounds

of religion, race or caste.A criticism of the language

policy of the government would not be an appeal on the

ground of langauge but a criticism of the political conduct

of a candidate.

d. An appeal whether direct or indirect for the

estbalishment of a non secular state such as a Rajput

State (Ambika Sharan case) is an appeal based on

caste.

e. An appeal for the establishment of a theocratic state

would amount to corrupt practice (Bommai case).

IV. WHETHER CONTESTING ON A TICKET OF THE PARTY WHICH HAS ISSUED A MANIFESTO AMOUNTS TO CONSENT TO THE CONTENTS OF THE MANIFESTO

42

58. This Hon’ble Court in Dr Ramachandra G Kapse v.

Haribansh Rakmal Singh [(1996) 1 SCC 206] held that

B.J.P. manifesto statements on Hindu religion not drafted or

specifically used by the candidate in the campaign cannot be

used against the candidate to prove corrupt practice in the

following words in Para. 21 and 24:

“21…In such a situation, contesting as a candidate of BJP could not be faulted and any part of its manifesto could not by itself be held to form the basis of holding a B.J.P. candidate guilty of a corrupt practice when no part in its drafting or specific use in the campaign is attributed to the candidate in the pleading or evidence. Ex facie contents of a manifesto, by itself, cannot be a corrupt practice committed by a candidate of that party. In this context, reference to the decision in Kultar Singh v. Mukhtiar Singh, is useful.”

“It may be mentioned that there is no mention of the word "Hindutva" or Hindu religion in the report of the speech at any place. This alone is sufficient to indicate that the evidence led in support of the election petition does not make out the corrupt practice either under Sub-section (3) or Sub-section (3A) of Section 123.”

59. It is submitted that if a candidate has participated in the

drafting of the party’s manifesto or used it in an election

campaign and such manifesto contains an appeal on grounds

of religion, it would amount to an act by the candidate to

appeal on the ground of religion which is a corrupt practice

under S.123.

43

V. WHAT IS HINDUTVA OBITER IN PRABHOO CASE

60. The question therefore arises, how does one understand

religion in particular how does one understand Hindu religion in

terms of S.123.

61. This court in Subhash Desai v. Sharad J. Rao AIR 1994 SC 2277, held as follows on the appeal to Hindutva in election speeches:

“5. Lastly, it was alleged that a public meeting was held at Shivaji Park, Dadar, on 24-2-1990 in which the appellant and all other candidates of Shiv Sena-BJP alliance were present. The said meeting was addressed by Bal Thackeray and other leaders, at which Bal Thackeray reiterated that he was "contesting the election in the name of Hindu religion (Hindutva)". The proceedings of the said meeting were reported in various dailies, and even the voters of the constituency in question, read the press reports.”

“6. In the written statement a stand was taken on behalf of the appellant, that the charge that appellant had contested the election on the ground of Hindutva or Hinduism was of no consequence, because since time immemorial this country was known as Hindustan and the inhabitants of this country were known as Hindus. It was further asserted that Shiv Sena-BJP were never against any religion and the said parties had always considered all people "faithful to this country as Hindus, irrespective of their religion. The said parties have always been against anti-nationals whether they are Hindus or not". The appellant denied that Shiv Sena and/or BJP at any time propounded the cause of Hinduism as their goal for the election. He also denied that he or BJP and/or Shiv Sena at any time propagated religious hatred amongst the communities, as alleged, or that he had made any statement, saying "show these Hindu traitors their place, vote in the interest of Hindus for Subhash Desai".

“29. We are in agreement with the finding of the High Court that on the materials on record the charge of corrupt practices under sub-section (3-A) and sub-section (4) of

44

Section 123, has been established against the appellant, vitiating his election to the Legislative Assembly. In view of the finding aforesaid, we do not consider it necessary to examine as to whether corrupt practice under sub-section (3) of Section 123 of the Act, has also been established.”

62. This court has held in Prabhoo case that an appeal to

Hindutva does not constitute an appeal to the Hindu religion

but to a way of life. If this formulation of what constitutes

Hindutva is correct, it would be permissible to contest elections

on a Hindutva plank and yet say that an appeal to the voters to

vote for a Hindutva party of candidate of the party is not an

appeal to religion but an appeal to a “way of life”.

63. It is submitted that the judgment of this Hon’ble court in

Prabhoo case to the extent that it holds that Hindutva is a

way of life is erroneous and is required to be over-ruled. It has

the effect of undermining the Secular credentials of the State

and posing a danger to minorities and their guaranteed right to

religion. It is submitted that Hindutva is not a “ way of life of

the people of India but a form of Hinduism adopted by a

section of Hindus which, in a significant section’s interpretation

at least, aims at making Hinduism a State religion and India a

theocratic State. The Law as laid down by this Hon’ble Court

especially on such a sensitive and volatile subject needs to

address the issue of what it’s impact will be on the ground and

the fact that this selective interpretation of one Judgement of

45

this Hon’ble Court is being used in party manifestos of some

political outfits, selectively is proof if any were needed of the

deleterious impact of such a narrow interpretation. It is

submitted that an appeal to vote for a candidate who supports

Hindutva is an appeal to vote on the ground of religion and

therefore must be seen as such.

64. The Prabhoo case is also per incuriam for the reason that it

failed to notice earlier judgments of this Hon’ble court.

65. Particularly that of Dr Das on the interpretation of an appeal

on the ground of religion and for that reason also is required to

be overruled. This court in Dr Das case while holding that

posters reading as “to teach Muslims a lesson” vote for the

candidate, held in Para. 16 that stated that if the substance of

the appeal is potentially offensive and is likely to rouse passion

in the minds of the voters on communal basis and is likely to

bring disharmony between the two communities and offended

the secular structure of the country then such appeal is not

permissible:

“After giving our anxious consideration to the facts and circumstances of the case and contentions made by the respective counsel for the parties, it appears to us that in the instant case, it has been convincingly established that the appellant has permitted to display poster Ext. 0.20 for the purpose of his election campaign. In the said poster, appeal to vote for the appellant was made for the purpose of teaching a lesson to muslims. Such appeal, to say the least, was potentially offensive and was likely to rouse

46

passion in the minds of the voters on communal basis. Such appeal to teach a lesson was also likely to bring disharmony between the two communities namely the hindus and the muslims and offended the secular structure of the country.In our view, use of such poster by itself is sufficient to hold that the appellant had indulged in corrupt practice under Section 123(3) and 123(3A) of the Representation Act. We may, however, indicate that speeches delivered in the election meeting by leaders of political parties should be appreciated dispassionately by keeping in mind the context in which such speeches were made. This Court has indicated a note of caution that in election speeches appeals are made by candidates of opposing political parties often in an atmosphere surcharged with partisan feelings and emotions. Use of hyperboles or exaggerated language or adoption of metaphors and extravagance of expression in attacking one party of a candidate are very common and court should consider the real thrust of the speech without labouring to dissect one or two sentences of the speech, to decide whether the speech was really intended to generate improper passions on the score of religion, caste, community etc. In deciding whether a party or his collaborators had indulged in corrupt practice regard must be had to the substance of the matter rather than mere form or phraseology….It has been very strenuously contended by the learned Counsel for the appellant that appeal to vote for 'hindutwa' should not be confused with appeal to vote only for a member of one community namely the hindus. Criticism of partisan treatment meted out to the hindus by the ruling congress party or appeasement policy in favour of one community or followers of a particular religion impairing national integrity and appeal to oppose such improper and anti-national policy should not be held to be an appeal to vote only on the basis of a particular religion. It has been contended that the thrust of the speeches was that in equal treatment meted out to hindus and deliberate hurting of sentiments of hindus have encouraged divisive forces and anti-national elements in the country and hindus should be aware of such divisive forces and try to unite against such divisive and anti-national forces in selecting proper candidate who would safeguard the unity and integrity of the country. In our view, it is not necessary to consider the philosophy of hindu religion and

47

its tenets of tolerance and respect for different religious faiths for the purpose of appreciating whether appeals was really made for hindutwa which is something different from outward practices and some of the followings professed by followers of hindu religion. In the instant case, we have already indicated that the appellant had given publicity to the voters by exhibiting the poster Ext. 0.20 which was per se highly offensive and potentially vulnerable and was likely to bring hatred and misunderstanding between the two communities, namely, the hindus and the muslims. In our view, the poster containing an appeal to vote for the appellant 'to teach the muslim a lesson' cannot be justified in any manner even by giving reasonable latitudes in election speeches.”

66. It is submitted that the question whether an appeal in the

name of Hindutva would be a corrupt practice under S.123(3)

and (3A) never arose for consideration since an appeal in this

case was held to be an appeal on grounds of Hindu religion.

The observations of this Court in Paras. 32- 44 in Prabhoo

case were wholly unnecessary to decide the question whether

the appeal made in that case was made on the ground of

religion. The observation of the Court in Para. 37 that the

term “Hindutva” is a way of life and not to religion is erroneous

and requires to be overruled. The implication of the said ruling

is that any appeal for votes in the name of Hindutva will not be

hit by S.123(3).

“37. These Constitution Bench decisions, after a detailed discussion, indicate that no precise meaning can be ascribed to the terms ‘Hindu’, ‘Hindutva’ and ‘Hinduism’; and no meaning in the abstract can confine it to the

48

narrow limits of religion alone, excluding the content of Indian culture and heritage. It is also indicated that the term ‘Hindutva’ is related more to the way of life of the people in the sub-continent. It is difficult to appreciate how in the face of these decisions the term ‘Hindutva’ or ‘Hinduism’ per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or be construed to fall within the prohibition in sub-sections (3) and/or (3-A) of Section 123 of the R.P. Act.”

67. Thus, it is submitted that reference to ‘Hindutva’ or any other

manifestation of a sect of a religion is likely arouse irrational

communal passions that will be contrary to the secular scheme

of our Constitution.

68. It is submitted that these observations run counter to the

observations in Suryakant Mahadik case.

69. This Hon’ble Court in Suryakant Venkatrao Mahadik v.

Saroj Sandesh Naik (Bhosale) [(1996) 1 SCC 384]

(Mahadik case) held speeches by a candidate and some

others made on different dates referring to Hindutva as corrupt

practice. Also appeals by such Hindu candidate to a

congregation of Hindu devotees in a hindu temple during a

Hindu religious festival with emphasis on the Hindu religion for

giving votes to a Hindu candidate espousing the cause of

Hindu religion was held to be corrupt practice. This court in

Para. 14 stated that whether an appeal is such that voters

49

understand the meaning and use of the word "Hindutva" in the

speech as appealing to Hindu religion is the relevant factor:

“The meaning of the word "Hindutva" was seriously debated at the Bar during the hearing of the bunch of appeals of which this is one. We have dealt with this aspect at length in the connected Civil Appeal No. 2835 of 1989 Bal Thackeray v. Prabhakar K. Kunte and Ors. (with Civil Appeal No. 2836 of 1989) decided today and it is unnecessary to reiterate the same herein. It is sufficient for the present purpose to say that the meaning of the word "Hindutva" in the speech has to be understood in the context and according to its use and the manner in which it was meant to be understood by the audience. irrespective of the meaning of Hindutva in the abstract, what is material in each case is the kind of use made of this term and the manner in which it was meant to be understood by the audience to which the speech was addressed. The relevant pleadings in the present case as extracted above, make it clear that this particular speech by the appellant was an appeal by a Hindu to a congregation of Hindu devotees in a hindu temple during a Hindu religious festival with emphasis on the Hindu religion for giving votes to a Hindu candidate espousing the cause of Hindu religion. Thus according to the pleadings in the election petition the speech made by the appellant was clearly an appeal to the voters on the ground of his religion. The evidence which proves the speech made by the appellant in a Hindu temple during a religious festival addressed to Hindu devotees forming the religious gathering has to be understood in this context. The word "Hindutva " used in the speech of the appellant at the time, place and occasion has to be understood only as an appeal on the ground of Hindu religion , that is, by the candidate on the ground of his religion. As earlier stated, the word "Hindutva" in the abstract and in a different context addressed to a different gathering may have different meaning relating to Indian culture and heritage unrelated to religion, but in the present context it has only one meaning as indicated...”

50

70. It is submitted that the ruling of the Court inMahadik case

tothe extent it holds that the reference in Hindutva to the

speech is a corrupt practice as it amounts to an appeal on the

ground of religion is contrary to the ruling of the Court in the

Prabhoo case. For this reason also this Hon’ble Court must

clarify the entire scope of Section 123(3) including the

question whether an appeal to Hindutva is an appeal on the

ground of religion, race, community or language.

VI.REFERENCE TO BENCH OF FIVE JUDGES- Terms of

Reference proposed

71. During the course of the hearing of this reference, this Hon’ble

Court indicated that the interpretation of Section 123(3) will be

referred to a bench of 5 judges.

72. It is submitted that the ruling of the court in Prabhoo case

has led to the inference that an appeal for votes in the name of

Hindutva is not an appeal on the ground of religion or an

appeal for a theocratic state. This has led to disastrous

consequences for the secular fabric of the nation. Hence, it is

proper that the following questions be referred to a bench of 5

judges.

51

Proposed terms of reference to 5 judges

1. When can it be said that an appeal mentioned in Section

123(3) RPA, is made on the grounds of religion, race, caste,

community or language so as to constitute a corrupt practice.

2. Whether an appeal by a candidate for a “Hindutva “ state is

not an appeal for a theocratic state and therefore an appeal on

the grounds of religion under the meaning of Section 123(3) of

the RPA, 1951

3. Whether Ramesh Prabhoo is wrongly decided in as much as it

holds that “Hindutva” is a way of life and not a religion.

4. Whether an appeal to Hindutva is not an appeal to religion

within the meaning of Section 123(3) RPA,1951.

5. Whether the use of a party manifesto by a candidate which

constitutes an appeal to religion would not be a corrupt

practice within the meaning of Section 123(3), RPA,1951.

( INDIRA JAISING )

SENIOR ADVOCATE

52