1995 Supreme(SC) 1311

1996(1) Supreme 145
SUPREME COURT OF INDIA
J. S. Verma, N. P. Singh and                 K. Venkataswami, JJ.
Dr. Ramesh Yeshwant Prabhoo -Appellant
versus
Shri Prabhakar Kashinath Kunte & Ors. -Respondents
WITH
Bal Thackeray -Appellant
versus
Shri Prabhakar Kashinath Kunte & Ors.
-Respondents
Civil Appeal Nos. 2836 and 2835  of 1989
Decided on 11.12.1995
Counsel for the Parties :
For the Appellants : Ram Jethmalani.
For the Respondent : Shri Ashok Desai

IMPORTANT POINT
Under Section 123(3) of Respresentation of People Act, 1951 what is prohibited is any appeal which leads to the inference that it is made on the ground of the religion of the candidate for whom the votes are sought; and when the appeal is to refrain from voting for any candidate, on the ground of the religion of that other candidate. Such appeal had not be prejudicial to public order.

Headnote:(i) Representation of the People Act, 1951-Section 123(3)-Corrupt election practice based on religion is prohibited-Meaning and Scope of Section 123(3) explained-The element of prejudicial effect on public order is not implicit in it. (Para 13)

       Held : It cannot be doubted that an election speech made in conformity with the fundamental right to freedom of religion guaranteed under Articles 25 to 30 of the Constitution, cannot be treated as anti-secular to be prohibited by sub-section (3) of Section 123, unless it falls within the narrow net of the prohibition indicated earlier. It is obvious that a speech referring to religion during election campaign with a secular stance in conformity with the fundamental right to freedom of religion can be made without being hit by the prohibition contained in sub-section (3), if it does not contain an appeal to vote for any candidate because of his religion or to refrain from voting for any candidate because of his religion. When it is said that politics and religion do not mix, it obviously does not mean that even such permissible political speeches are forbidden. This is the meaning and true scope of sub-section (3) of Section 123 of the Act. (Para 18)

       (ii) Representation of the People Act, 1951-Section 123(3A)-Meaning and Scope of-Similar to Section 153A, Indian Penal Code- Corrupt election practice based on promotion of or attempt to promote, feelings of enmity or hatred is prohibited- The element of prejudicial effect on public order is implicit. (Paras 20 & 21)

       (iii) Representation of the People Act, 1951-Section 123(3)-Corrupt election practices based on Religion and feelings of enmity and hatred -Whether violative of fundamental right of speech guaranteed under Article 19(1)(a) of Constitution ? (No)

       Held : In our opinion, the saving in clause (2) of Article 19 permits the imposition of reasonable restrictions on the exercise of the right conferred by Article 19(1)(a) by making any law in the interests of decency or morality; and sub-section (3) of Section 123 of the R.P. Act, as con-strued by us, has the protection of clause (2) of Article 19 under the head decency therein. This conclusion is reached by us even if it is assumed that the provision is not saved merely as a condition subject to which the statutory right of contesting an election is available to the candidate. The fact that the scheme of separate electorates was rejected in framing the Constitution and secularism is the creed adopted in the constitutional scheme, are relevant considerations to treat this as a reasonable restriction on the freedom of speech and expression, for maintaining the standard of behaviour required in conformity with the decency and propriety of the societal norms. Viewed at in any manner, sub-section (3) of Section 123 cannot be held to be unconstitutional. This view is also in accord with the nature of right to contest an election, as understood in Jamuna Prasad Mukhariya and Others v. Lachhi Ram and Others, 1955(1) SCR 608. The argument assailing the constitutional validity of sub-sections (3) and/or (3A) of Section 123 is rejected. (Paras 31 and 32)

       (iv) Words and Phrases- "Hindutva" or "Hinduism" in speech -Does not make it based on Hindu Religion as opposed to other reli-gions-Whether a particular speech using these words falls within the prohibition of Sections 123(3) and (3A) of Representation of People Act is a question of fact. (Para 46)

       Held : 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. (Para 47).

       (v) Representation of People Act, 1951-Section 99-Notice to add Bal Thackaray in election petition by High Court-Whether there was non-compliance of Section 99 ? (No). (Paras 51 & 52)

       Held : 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. (Para 51)

       Held : 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 noticee Bal Thackeray is, therefore, rejected and the objection raised in the appeal of Bal Thackeray of non-compliance of Section 99 of the R.P. Act has no merit.

        (Para 53)

       (vi) Representation of People Act, 1951-Section 116A-Appeal against decision of High Court holding elections of appellant void as ground under Section 100(1)(b) of the Act as appellant was found guilty of Corrupt practices prescribed by Section 123(3) and (3A)-Whether appellant and his agent Bal Thackaray with his consent made speeches based on Hindu Religion and promoted feelings of enmity and hartred bidman Hindu and Muslims ? (Yes)-Result-Election of appellant rightly held void by High Court.

       Held : 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 in accordance with Section 99 of the R.P. Act of which due compliance has been made in the present case. (Para 63)