Dr. Ramesh Yeshwant Prabhoo vs. Shri Prabhakar Kashinath Kunte, Decided on 11.12.1995 : 1995 Legal Eagle (SC) 1239 : 1996 AIR (SC) 1113 : 1996 (1) SCC 130

Facts

The election of Dr. Ramesh Yeshwant Prabhoo (Appellant herein), the returned candidate from Vile Parle Constituency to the Maharashtra State Legislative Assembly, held on 13th December, 1987, has been declared to be void on the ground under Section 100(1)(b) of the 1951 Act. The appellant has been found guilty of the corrupt practices prescribed by sub-Sections (3) and (3A) of Section 123 of the 1951 Act at the election, in that he and his agent Bal Thackeray (also Appellant herein) with his consent appealed for votes on the ground of the returned candidate's religion and that they promoted or tended to promote feelings of enmity and hatred between different classes of the citizens of India on the grounds of religion and community. Consequently, Bal Thackeray, after a notice issued under Section 99 of the Act to him, has also been named for commission of these corrupt practices.

The said election was held on 13th December, 1987 and the result was declared on 14th December, 1987, at which Dr. Ramesh Yeshwant Prabhoo was declared to be duly elected. The charge of these corrupt practices is based on three public speeches delivered by Bal Thackeray : on 29.11.1987 at Parle (opposite Shiv Sena Shaka No. 84), on 9.12.1987 at Khar Danda near Shankar Temple, and on 10.12. 1987 at Jaltaran Maidan, Vile Parle (East). The public speech given on 9.12.1987 has been held to amount to the corrupt practice under sub-section (3) of Section 123, while public speeches delivered on 29.11.1987 and 10.12.1987 have been held to be corrupt practices under sub-sections (3) and (3A) of Section 123 of the Act.

After the election petitioner closed his evidence, the returned candidate Dr. Prabhoo examined only himself in rebuttal. After close of the evidence of the parties and hearing arguments of both sides, the High Court ordered issue of notice under Section 99 of the Act to Bal Thackeray who filed an affidavit in reply to the notice. The election petitioner and his three witnesses were recalled for cross examination by counsel for the noticee, Bal Thackeray. The noticee did not examine himself on any other witness in rebuttal. The decision of the High Court, declaring the election to be void, is based on this material.

Contentions of the appellants

Broadly stated, the contentions of Shri Ram Jethmalani, counsel for the appellants in these appeals are :

(1) Sub-sections (3) and (3A) of Section 123 of the 1951 Act are constitutionally invalid being violative of guarantee of free speech in Article 19(1)(a) of the Constitution;

(2) To save both these provisions from constitutional invalidity, they must be read as reasonable restrictions in the interest of public order to get the protection of Article 19(2) of the Constitution. In other words, unless the speech is prejudicial to the maintenance of public order, it cannot fall within the net of either sub-section (3) or sub-section (3A) of Section 123 of the Act;

(3) In sub-section (3) of Section 123, the emphasis is on the word "his" preceding the word "religion" and its significance must be understood in the light of the restricted scope of the provision indicated by the Union Law Minister during the Parliamentary debates to explain the object of introduction of the word "his" in the provision. In other words, only a direct appeal for votes on the ground of "his" religion subject to its tendency to prejudice the maintenance of Public order is contended to be the limited scope of sub-section (3) of Section 123;

(4) A speech in which there be a reference to religion but no direct appeal for votes on the ground of his religion, does not come within the net of sub-section (3) of Section 123;

(5) The public speeches in question did not amount to appeal for votes on the ground of his religion and the substance and main thrust thereof was "Hindutava" which means the Indian culture and not merely the Hindu religion;

(6) The public speeches criticized the anti-secular stance of the Congress Party in practising discrimination against Hindus and giving undue favour to the minorities which is not an appeal for votes on the ground of Hindu religion;

(7) That the pleadings in the election petition are deficient being devoid of the material particulars and, therefore, the material brought in at the stage of evidence and relied on to prove the charge of corrupt practice has to be excluded from consideration.

Held

Interpretation of sub-section (3) of section 123 of 1951 Act

Following observations and holdings are made by the Supreme Court:

‘There can be no doubt that the word `his' used in sub- section (3) must have significance and it cannot be ignored or equated with the word `any' to bring within the net of sub-section (3) any appeal in which there is any reference to religion. The religion forming the basis of the appeal to vote or refrain from voting for any person, must be of that candidate for whom the appeal to vote or refrain from voting is made. This is clear from the plain language of sub- section (3) and this is the only manner in which the word `his' used therein can be construed. The expressions "the appeal ..... to vote or refrain from voting for any person on the ground of his religion, ..... for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate" lead clearly to this conclusion. When the appeal is to vote on the ground of `his' religion for the furtherance of the prospects of the election of that candidate, that appeal is made on the basis of the religion of the candidate for whom votes are solicited. On the other hand when the appeal is to refrain from voting for any person on the ground of `his' religion for prejudicially affecting the election of any candidate, that appeal is based on the religion of the candidate whose election is sought to be prejudicially affected. It is thus clear that for soliciting votes for a candidate, the appeal prohibited is that which is made on the ground of religion of the candidate for whom the votes are sought; and when the appeal is to refrain from voting for any candidate, the prohibition is against an appeal on the ground of the religion of that other candidate. The first is a positive appeal and the second a negative appeal. There is no ambiguity in sub-section (3) and it clearly indicates the particular religion on the basis of which an appeal to vote or refrain from voting for any person is prohibited under sub-section (3).’

‘The argument that such an appeal must be a direct appeal, such as `Vote for A because he is a Hindu' or `Do not vote for B because he is a Christian', and that no other appeal leading to that conclusion is forbidden, does not appeal to reason. What is forbidden by sub-section (3) is an appeal of this kind and, therefore, any appeal which amounts to or leads to this inference must necessarily come within the prohibition in sub-section (3). Whether a particular appeal is of this kind, is a question of fact in each case. Where the words used in the appeal are clear and unambiguous amounting to a direct appeal, the exercise of construing the speech is not needed. However, where a reasonable construction of the appeal leads to that conclusion, the result must be the same. The substance of the speech and the manner in which it is meant to be understood by the audience determines its nature, and not the camouflage by an artistic use of the language. For understanding the meaning and effect of the speech, the context has to be found in the speech itself and not outside it with reference to any other background unless the speech itself imports any earlier fact in the context of that speech. The speech has also not to be construed in the abstract or in the manner in which it would be construed after an academic debate. Care must be taken to remember that the public speeches during election campaign ordinarily are addressed to audience comprised of common men end, therefore, the manner in which it would be understood by such an audience has to be kept in view.’

‘We are unable to accept the submission of Shri Jethmalani that a further element of prejudicial effect on public order, is implicit in sub-section (3). We do not find anything in the language of the provision to read this further element into it. Sub-section (3) in substance forbids appeal for votes for any candidate on the ground of `his' religion and appeal to refrain from voting for any other candidate on the ground of the religion of that other candidate. Obviously the purpose of enacting the provision is to ensure that no candidate at an election gets votes only because of his religion and no candidate is denied any votes on the ground of his religion. This is in keeping with the secular character of the Indian polity and rejection of the scheme of separate electorates based on religion in our constitutional scheme. An appeal of the kind forbidden by sub-section (3) based on the religion of a candidate, need not necessarily be prejudicial to public order and, therefore, the further element of likelihood of prejudice to public order is unnecessary, on account of which it is not implicit in the provision. This, according to us, is the meaning and the correct construction of sub-section (3). The question of constitutional validity of the provision on this meaning is considered later.’

Parliamentary Debates behind introduction of sub-section(3) referred to

The Supreme Court made following observations:

‘The clarification given in the speech of the Law Minister clearly shows that a speech for the protection of fundamental rights, preservation of own language, religion and culture, etc. are not forbidden by sub-section (3) of Section 123, and the limit is narrow to the extent indicated.’

‘It cannot be doubted that a speech with a secular stance alleging discrimination against any particular religion and promising removal of the imbalance cannot be treated as an appeal on the ground of religion as its thrust is for promoting secularism. Instances given in the speech of discrimination against any religion causing the imbalance in the professed goal of secularism, the allegation being against any individual or any political party, cannot be called an appeal on the ground of religion forbidden by sub- section (3). In other words, mention of religion as such in an election speech is not forbidden by sub-section (3) so long as it does not amount to an appeal to vote for a candidate on the ground of his religion or to refrain from voting for any other candidate on the ground of his religion. When it is said that politics and religion do not mix, it merely means that the religion of a candidate cannot be used for gaining political mileage by seeking votes on the ground of the candidate's religion or alienating the electorate against another candidate on the ground of the other candidate's religion. It also means that the state has no religion and the State practises the policy of neutrality in the matter of religion.’

The Supreme Court further went on to refer the Constitution Bench Judgement in ‘Dr. M. Ismail Faruqui and Others etc. etc. vs. Union of India and Others etc., (1994) 6 SCC 360 (Ayodhya case)’, wherein the Supreme Court had summarised the true concept of secularism under the Indian Constitution; and following observation is made:

‘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.’

Meaning of sub-section (3A) of section 123 of 1951 Act

‘This sub-section also was inserted along with the substituted sub-section (3) by Act 40 of 1961 w.e.f. 20.9.1961. The meaning of this sub-section is not much in controversy. Sub-section (3A) is similar to section 153-A of the Indian Penal Code. In sub-section (3A), the expression used is "the promotion of, or attempt to promote, feelings of enmity or hatred" as against the expression "Whoever .... promotes or attempts to promote ..... disharmony or feelings of enmity, hatred or ill-will ...." in Section 153-A, I.P.C. The expression `feelings of enmity or hatred' is common in both the provisions but the additional words in Section 153-A, I.P.C. are `disharmony .... or ill-will'. The difference in the plain language of the two provisions indicates that mere promotion of disharmony or ill-will between different groups of people is an offence under Section 153-A, I.P.C. while under sub- section (3A) of Section 123 of the R.P. Act, it is only the promotion of or attempt to promote feelings of enmity or hatred, which are stronger words, that is forbidden in the election campaign.’

‘The provision is made with the object of curbing the tendency to promote or attempt to promote communal, linguistic or any other factional enmity or hatred to prevent the divisive tendencies. The provision in the I.P.C. as well as in the R.P. Act for this purpose was made by amendment at the same time. The amendment in the R.P. Act followed amendments made in the Indian Penal Code to this effect in a bid to curb any tendency to resort to divisive means to achieve success at the polls on the ground of religion or narrow communal or linguistic affiliations. Any such attempt during the election is viewed with disfavour under the law and is made a corrupt practice under sub- section (3A) of Section 123.’

‘Shri Jethmalani is right that in sub-section (3A), the element of prejudicial effect on public order is implicit. Such divisive tendencies promoting enmity or hatred between different classes of citizens of India tend to create public unrest and disturb public order. This is a logical inference to draw on proof of the constituent parts of sub-section (3A). The meaning of sub-section (3A) is not seriously disputed between the parties and, therefore, it does not require any further discussion. However, whether the act complained of falls within the net of sub-section (3A) is a question of fact in each case to be decided on the basis of the evidence led to prove the alleged act.’

Constitutional validity of sub-sections (3) and (3A) of section 123 of 1951 Act

The Supreme Court made the following observations and holdings:

‘Sub-section (3A) of Section 123 is undoubtedly a provision made in the interests of public order or incitement to an offence because the promotion or attempt to promote feelings of enmity or hatred between different classes of the citizens of India on any of the grounds specified therein, apart from creating divisive tendency, would also be prejudicial to the maintenance of public order and may amount to incitement to commission of offences. The freedom of speech and expression guaranteed to all citizens under Article 19(1)(a), which is the basis of the constitutional challenge to this provision, is subject to clause (2) of Article 19 which permits the making of any law imposing reasonable restrictions on the exercise of this right in the interests of public order or incitement to an offence. For this reason, no further attempt was made to press the argument of challenge to the constitutional validity of sub-section (3A) on the construction we have made of that provision.’

‘The question now is of the constitutional validity of sub-section (3) of Section 123. We have already rejected the argument that the element of prejudicial effect on public order is implicit also in sub-section (3) as it is in sub- section (3A). According to Shri Ram Jethmalani, unless this element also is read into sub-section (3), it is violative of Article 19(1)(a) inasmuch as clause (2) of Article 19 does not save its validity under any of the other heads specified therein.’

‘We have construed sub-section (3) of Section 123 as a restriction only to the extent that votes cannot be sought for a candidate on the ground of his religion, etc. and similarly there can be no appeal to refrain from voting for any person on the same ground. In other words, an appeal to vote for a candidate or not to vote for him on the ground of his religion, etc. is the restriction imposed by sub-section (3). This restriction is in the law enacted to provide for the conduct of elections, the qualifications and disqualifications for membership of the Houses, the corrupt practices and other offences at or in connection with such elections. The right to contest the election is given by the statute subject to the conditions prescribed therein. The restriction is limited only to the appeal for votes to a candidate during the election period and not to the freedom of speech and expression in general or the freedom to profess, practise and propagate religion unconnected with the election campaign.’

‘It is true, as argued by Shri Jethmalani, that the freedom of speech and expression guaranteed to all citizens under Article 19(1)(a) is absolute subject to the reasonable restrictions imposed by any law saved by clause (2) of Article 19, under one of the heads specified therein. The heads specified in clause (2) of Article 19 are, therefore, several and they are intended to cover the entire area within which the absolute freedom to say anything which the speaker may alike would not extend, in keeping with the standards of a civilized society, the corresponding rights in others in an orderly society, and the constitutional scheme.’

‘The expression "In the interests of" used in clause (2) of Article 19 indicates a wide amplitude of the permissible law which can be enacted to provide for reasonable restrictions on the exercise of this right under one of the heads specified therein, in conformity with the constitutional scheme. Two of the heads mentioned are: decency or morality. Thus any law which imposes reasonable restrictions on the exercise of this right in the interests of decency or morality is also saved by clause (2) of Article 19. Shri Jethmalani contended that the words `decency or morality' relate to sexual morality alone. In view of the expression "in the interests of" and the context of election campaign for a free and fair poll, the right to contest the election being statutory and subject to the provisions of the statute, the words `decency or morality' do not require a narrow or pedantic meaning to be given to these words. The dictionary meaning of `decency' is "correct and tasteful standards of behaviour as generally accepted; conformity with current standards of behaviour or propriety; avoidance of obscenity; and the requirements of correct behaviour" (The Oxford Encyclopedic English Dictionary); "conformity to the prevailing standards of propriety, morality, modesty, etc.: and the quality of being decent" (Collins English Dictionary).’

‘Thus, the ordinary dictionary meaning of `decency' indicates that the action must be in conformity with the current standards of behaviour or propriety, etc. In a secular polity, the requirement of correct behaviour or propriety is that an appeal for votes should not be made on the ground of the candidate's religion which by itself is no index of the suitability of a candidate for membership of the House.’

‘Thus, seeking votes at an election on the ground of the candidate's religion in a secular State, is against the norms of decency and propriety of the society.’

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

and Others vs. Lachhi Ram and Others, 1955 (1) SCR 608’.’

‘The argument assailing the constitutional validity of sub-sections (3) and/or (3A) of Section 123 is rejected.’

Meaning of `Hindutva' and `Hinduism' and the effect of the use of these expressions in the election speeches.

The Supreme Court extensively deliberated on the meaning of ‘Hindutva’ and ‘Hinduism’ by referring to the following:

·        The Constitution Bench in ‘Sastri Yagnapurushadji and Others vs. Muldas Bhudardas Vaishya and Another, 1966 (3) SCR 242’

·        The Encyclopedia of Religion and Ethics, Vol. VI

·        The Hindu View of Life" by Dr. Radhakrishnan, p.12

·        Religious Thought & Life in India" by Monier Williams, p. 57.

·        “Indian Philosophy" by Dr. Radhakrishnan, Vol. I, pp. 22-23)

·        “The present-Day Experiment in Western Civilisation" by Toynbee, pp. 48-49)

·        Constitution Bench decision in ‘Commr. Of Wealth Tax, Madras & Ors. vs. Late R. Sridharan by L. Rs., (1976) Supp. SCR 478’

·        In Unabridged Edition of Webster's Third New International Dictionary of the English language

·        In Encyclopaedia Britannica (15th Edition)

·        "Gitarahasaya", B.G. Tilak

·        Bhagwan Koer v. J.C. Bose & Ors., (1904 ILR 31 Cal. 11)

·        Bharucha, J. in Dr. M. Ismail Faruqui and Ors. etc. etc. Vs. Union of India & Ors. etc., 1994 (6) SCC 360, (Ayodhya case)

·        The Constitution Bench in ‘Kultar Singh vs. Mukhtiar Singh, 1964 (7) SCR 790’

·        ‘Jagdev Singh Sidhanti vs Pratap Singh Daulta and Ors., 1964 (6) SCR 750’

The Supreme Court observed the following:

‘Thus, it cannot be doubted, particularly in view of the Constitution Bench decisions of

this Court that the words `Hinduism' or `Hindutva' are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of the people of India, depicting the way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract these terms are indicative more of a way of life of the Indian people and are not confined merely to describe persons practising the Hindu religion as a faith.’

‘Considering the terms `Hinduism' or `Hindutva' per se as depicting hostility, enmity or intolerance towards other religious faiths or professing communalism, proceeds from an improper appreciation and perception of the true meaning of these expressions emerging from the detailed discussion in earlier authorities of this Court. Misuse of these expressions to promote communalism cannot alter the true meaning of these terms. The mischief resulting from the misuse of the terms by anyone in his speech has to be checked and not its permissible use. It is indeed very unfortunate, if in spite of the liberal and tolerant features of `Hinduism' recognised in judicial decisions, these terms are misused by anyone during the elections to gain any unfair political advantage. Fundamentalism of any colour or kind must be curbed with a heavy hand to preserve and promote the secular creed of the nation. Any misuse of these terms must, therefore, be dealt with strictly.’

‘It is, therefore, a fallacy and an error of law to proceed on the assumption that any reference to Hindutva or Hinduism in a speech makes it automatically a speech based on the Hindu religion as opposed to the other religions or that the use of words `Hindutva' or `Hinduism' per se depict an attitude hostile to all persons practising any religion other than the Hindu religion. It is the kind of use made of these words and the meaning sought to be conveyed in the speech which has to be seen and unless such a construction leads to the conclusion that these words were used to appeal for votes for a Hindu candidate on the ground that he is a Hindu or not to vote for a candidate because he is not a Hindu, the mere fact that these words are used in the speech would not bring it within the prohibition of sub-section (3) or (3A) of Section 123. It may well be, that these words are used in a speech to promote secularism or to emphasise the way of life of the Indian people and the Indian culture or ethos, or to criticise the policy of any political party as discriminatory or intolerant. The parliamentary debates, including the clarifications made by the Law Minister quoted earlier, also bring out this difference between the prohibited and permissible speech in this context. Whether a particular speech in which reference is made to Hindutva and/or Hinduism falls within the prohibition under sub- section (3) or (3A) of Section 123 is, therefore, a question of fact in each case.’

‘This is the correct premise in our view on which all such matters are to be examined. The fallacy is in the assumption that a speech in which reference is made to Hindutva or Hinduism must be a speech on the ground of Hindu religion so that if the candidate for whom the speech is made happens to be a Hindu, it must necessarily amount to a corrupt practice under sub-section (3) and/or sub-section (3A)of Section 123 of the R.P. Act.’

Held: In attending facts of the Case

The three speeches were made on 29.11.1987, 9.12.1987 and 19.12.1987 and 10.12.1987 amount to corrupt practices under sub-sections (3) and (3A) of Section 123, while the speech of 9.12.1987 is a corrupt practice only under sub-section (3) thereof. The returned candidate Dr. Ramesh Yeshwant Prabhoo was present in all the three meetings in which these speeches were given by Bal Thackeray. The consent of Dr. Prabhoo for these speeches is implied from his conduct including his personal presence in all the three meetings.

Certain extracts from the alleged speeches of Bal Thackeray, translated in English, are expressly pleaded in the election petition, as under:-

From Speech of 29.11.1987 "We are fighting this election for the protection of Hinduism. Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and will remain so."

From Speech of 9.12.1987 "Hinduism will triumph in this election and we must become hon'ble recipients of this victory to ward off the danger on Hinduism, elect Ramesh Prabhoo to join with Chhagan Bhujbal who is already there. You will find Hindu temples underneath if all the mosques are dug out. Anybody who stands against the Hindus should be showed or worshipped with shoes. A candidate by name Prabhoo should be led to victory in the name of religion."

From Speech of 10.12.1987 "We have gone with the ideology of Hinduism. Shiv Sena will implement this ideology. Though this country belongs to Hindus, Ram and Krishna are insulted. (They) valued the Muslim votes more than your votes: we do not want the Muslim votes. A snake like Shahabuddin is sitting in the Janata Party, man like Nihal Ahmed is also in Janata Party. So the residents of Vile Parle should bury this party (Janata Party)."

The question is: Whether these speeches amount to corrupt practices under sub-section (3) and/or (3A) of Section 123 as held by the High Court ?

Certain extracts are quoted from the three speeches of Bal Thackeray on which reliance has been placed in particular by Shri Ashok Desai to support the judgment of the High Court that they constitute the said corrupt practices. These are:

First speech on 29.11.1987 "All my Hindu brothers, sisters and mothers gathered here. .... Today Dr. Prabhu has been put up as candidate from you 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 do not get a votes from a single Muslim and we are not at all desirous to win an election with such votes. .... therefore, there is a dire need of the voice of Hindutva and therefore please send Shiv-Sena to Legislative Assembly. .... Who are (these) Muslims. Who are these `lande'. Once Vasant Dada had called me when he was a Chief Minister. He told me that rest is O.K. But asked me as to why I was calling them Lande. But is it correct if they call us `Kafer' (i.e. traitor) then we will certainly call the `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. Prabhu or of Shiv-sena but the victory will be that of Hinduism. You will be instrumental in victory and you should become instrument for the same. At last you have the right to get rid of the difficulties faced by you caste, creed, gods deities and Hindu religion. .... Therefore, I want to say that today we are standing for Hinduism. .... Whatever Masjids are there, if one starts digging the same, one will find Hindu temples under the same. .... If any body stands against Hindustan you should show courage by performing pooja (i.e. worship) with shoes. .... And a person by name Prabhu who is contesting the election in the name of religion serve ahead (in the assembly). A `Jawan' - like Prabhu 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 you vote. .... You must sent only Dr. Ramesh Prabhu of Shiv-sena, otherwise Hindus will be finished. It will not take much take for Hindustan to be green (i.e. Pakistan?). ....

The following observations and holdings are made by the Supreme Court:

‘The appeal made to the voters by Bal Thackeray in his aforesaid speech was a clear appeal to the Hindu voters to vote for Dr. Ramesh Prabhoo because he is a Hindu. The clear import of the above extracts in each of the three speeches is to this effect. The first speech also makes derogatory reference to Muslims by calling them `snake' and referring to them as `lande' (derogatory term used for those practising circumcision). The language used in the context, amounted to an attempt to promote feelings of enmity or hatred between that Hindus and the Muslims on the ground of religion. The first speech, therefore, also constitutes and corrupt practice under sub-section (3A).’

‘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.’

‘We cannot help recording our distress at this kind of speeches given by a top leader of a political party. The lack of restraint in the language used and the derogatory terms used therein to refer to a group of people in an election speech in indeed to be condemned. The likely impact of such language used by a political leader is greater. It is, therefore, a greater need for the leaders to be more circumspect and careful in the kind of language they use in the election campaign. This is essential not only for maintaining decency and propriety in the election campaign but also for the preservation of the proper and time honoured values forming part of our cultural heritage and for a free and fair poll in a secular democracy. The offending speeches in the present case discarded the cherished values of our rich cultural heritage and tended to erode the secular polity. We say this, with the fervent hope that our observation has some chastening effect in the future election campaigns.’

Accordingly both appeals were dismissed.

Adv. Parminder Singh

Tis Hazari Courts, Delhi