Full Judgment Text
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PETITIONER:
RAMAKANT MAYEKAR
Vs.
RESPONDENT:
SMT. CELINE D’SILVA
DATE OF JUDGMENT11/12/1995
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
SINGH N.P. (J)
VENKATASWAMI K. (J)
CITATION:
1996 AIR 826 1996 SCC (1) 399
JT 1995 (9) 73 1995 SCALE (7)72
ACT:
HEADNOTE:
JUDGMENT:
WITH
CIVIL APPEAL NO. 93 OF 1992
Chhagan Bhujbal
V.
Smt. Celine D’Silva & Anr.
AND
CIVIL APPEAL NO. 94 OF 1992
Pramod Mahajan
V.
Smt. Celine D’Silva & Anr.
AND
CIVIL APPEAL NO. 2396 OF 1992
Balasaheb Thackery
V.
Smt. Celine D’Silva & Anr.
JUDGMENT
J.S. VERMA, J. :
This is an appeal by the returned candidate under
Section 116A of the Representation of the People Act, 1951
(for short "the R.P. Act") against the judgment dated
5th/6th August, 1991 in Election Petition No. 21 of 1990 by
S.N. Variava, J. of the Bombay High Court whereby the
election of the appellant to the Maharashtra Legislative
Assembly from 49-Kurla Legislative Constituency held on
27.2.1990 has been declared to be void on the ground under
Section 100(1)(b) for commission of corrupt practices under
sub-section (3) and (3A) of the R.P. Act. By the said
judgment, the learned Judge has decided the election
petition and made the order under Section 98 declaring the
election of the appellant to be void but the findings on
issue Nos. 2 and 5 have been reserved for being recorded
after the inquiry under Section 99 of the R.P. Act is
concluded against Chhagan Bhujbal, Pramod Mahajan, Bal
Thackeray, Manohar Joshi and Pramod Navalkar to whom notices
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have been issued under Section 99 of the R.P. Act by the
order made therein. The ultimate conclusion in the final
order made in the impugned judgment is quite involved
because of the unusual mode adopted of deciding the election
petition piecemeal. Instead of attempting to summarise the
conclusion, it is safer to quote certain portions of the
concluding part of the judgment, as under :-
"I" have already held that the cassette
was displayed in the Constituency with
the consent of the Respondent. There is
however no proof that it was personally
exhibited by the Respondent. Accordingly
it will have to be held that, by mode of
display of this video cassette, some
other persons with the consent of the
Respondent have committed the corrupt
practice of appealing for votes on the
ground of the Respondent’s religion i.e.
Hindu religion and have attempted to
create enmity and hatred between
different communities and religions
particularly Hindu and Muslims. On this
count itself, the election of the
Respondent must be set aside.
Accordingly, Issues Nos. 3 and 6 have
been answered in the Affirmative and
Issue Nos. 1 and 4 have been answered in
the Negatives.
However, before the final order is
passed the last and the main mode of
canvassing i.e. by means of the speeches
made by Mr. Bal Thackeray and the other
leaders of the Shiv Sena and B.J.P.
alliance at the meetings held on 29th
January, 1990 and 24th February, 1990,
has to be considered. I have read the
speeches of Mr. Bal Thackeray, Mr.
Pramod Mahajan, Mr. Chaggan Bhujbal, Mr.
Manohar Mahajan, Mr. Pramod
Navalkar........ On reading of these
speeches, I am of the prima-facie
opinion that all the abovenamed persons
have by their speeches committed the
corrupt practice of having appealed for
votes on the ground of the Respondents
community and religion i.e. Hindu
community and religion. They have also,
prima-facie at least, committed the
corrupt practice of attempting to create
enmity and hatred between different
classes of citizens on the basis of
religion and community, particularly
between Hindus and Muslims. I have
already set out above that in cases like
the present the consent of the
Respondent can be and is implied. As
stated above the effect and import of
the entire speech has to be considered.
At this prima-facie stage it is
therefore not possible to pin point any
particular portion or portions. That can
only by done after hearing the import
and effect and interpretation of the
speeches from the person who made the
speeches. Thus before I express my final
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opinion I intend to issue notices under
Section 99 of the Representation of
People Act, 1951 to all the above named
persons. thus the answer to Issues 2 and
5 has been reserved till after the final
disposal of the Notices issued
hereunder.
Accordingly, I direct that separate
Notices under Section 99 of the
Representation of People Act, 1951 be
issued to Mr. Bal Thackeray, Mr. Manohar
Joshi, Mr. Chaggan Bhujbal, Mr. Pramod
Navalkar and Mr. Pramod Mahajan........
To each Notice shall also be annexed a
copy of this Judgment. In each Notice it
will be pointed that in the Judgment it
is already held that the concerned
speech/speeches were with the implied
consent of the Respondent."
xxx xxx xxx
"As it has been held that corrupt
practice has been committed by mode of
wall paintings and display of video
cassettes, the petition is made absolute
in terms of prayers (a) and (b) i.e. the
Election of the Respondent to the
Maharashtra Legislative Assembly
election held on 27th February, 190 from
Constituency No. 49 i.e. Kurla
Constituency is declared as null and
void. This is on the ground that corrupt
practice set out above under sub-
sections (3) and (3A) of Section 123 of
the Representation of Peoples Act, 1951
have been proved to have been committed
with the consent of the Respondent i.e.
that there has been an appeal to vote
for the Respondent in the name of his
religion i.e. Hindu religion and an
attempt has been made to promote
feelings classes of citizens of India on
the ground of religion and community."
(emphasis supplied)
After the impugned judgement was rendered, notices
under Section 99 of the R.P. Act were issued to the
aforesaid five persons who then raised certain preliminary
objections to the validity of the notices. Variava, J. by
his order dated 6.1.1992 rejected those objections. The
notices given to these persons related to certain speeches
alleged to have been made by them on 29.1.1990 and 24.2.1990
which, it was alleged, constituted corrupt practices under
Sections 123(3) and 123(3A) of the R.P. Act. In the said
order dated 6.1.1992, Variava, J. has mentioned certain
facts in the background of which the objections to the
notices under Section 99 were considered in that order.
Those facts mentioned at the outset in the said order are as
under :-
"Petition No. 21 of 1990 is not an
individual Election Petition before this
Court. In respect of the same elections
i.e. the elections to the Maharashtra
Legislative Assembly held in February
1990, ten such petitions have been filed
before this Court. All of these are
against various successful candidates of
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Shiv Sena and Bharatiya Janata Party.
All these petitions are based on a plank
of Hindutva/Hinduism alleged to have
been adopted by these parties and
allegedly declared by their leaders at
the joint Public meetings held by these
two parties on 29th January 1990 and
24th February 1990. In all these
petitions the charges are that the
respective respondents, their election
agents and/or some other persons have
with the consent of the respective
Respondents, committed corrupt practices
of appealing for votes on the grounds of
the candidates religion, community and
casts viz. Hindu religion, community and
caste and the corrupt practice of
creating enmity and hatred between
various classes of citizens on the
ground of religion, community and caste
particularly between Hindus and Muslims.
Thus the charges are under Secs. 123(3)
and 123(3A) of the Representation of
Peoples Act, 1951. The mode of resorting
to these corrupt practices have been by
way of speeches made by the leaders of
the two parties at the joint meetings
held on 29th January, 1990 and 24th
February, 1990, by use of offending
poster, banners, wall writings and a
video cassette "Awahan and Avhan". This
is the same material in all these
Petitions. Then in individual Petitions,
there are allegations of speeches made
in the individual constituencies, either
by the respective Respondent of somebody
else with his consent.
In this Petition also, the charges
against the Respondent and the alleged
mode of canvassing are the same. Thus
the charge is that the Respondent, his
election agents and/or some other
persons have with his consent, committed
the corrupt practices of appealing for
votes on the grounds of the Respondents
religion, community and caste viz. Hindu
religion, community and caste and the
corrupt practice of creating enmity and
hatred between various classes of
citizens on the ground of religion,
community and caste particularly between
Hindus and Muslims. Thus the charges are
under Secs. 123 (3) and 123 (3A) of the
Representation of Peoples Act, 1951. In
this Petition also the alleged mode of
resorting to these corrupt practices is
by way of speeches made by the leaders
of Shiv Sena and B.J.P. at the joint
public meetings held on 29th January
1990 (at Shivaji Park) and by use of
offending posters, banners, wall
writings and the video cassette ‘Awahan
and avhan’."
(emphasis supplied)
At the beginning of the impugned judgment, the scope of
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the election petition and the true perspective in which it
has to be decided has been stated by Variava, J. as under :-
"It must also be noted that these
group of petitions are to a large extent
unlike other election petitions. This
because these petitions are not based
upon individual acts of individuals.
They are mainly based upon the
abovementioned plank and/or policy
decision of these parties. This will
have a bearing on the question of
consent. It is therefore necessary to
note the make up of the Shiv Sena party.
This already forms part of two Judgments
of this court."
xxx xxx xxx
"......... Unlike other Election
Petitions the main charge is not of an
individual corrupt practice committed b
an individual candidate in his
constituency. really speaking, the
charge against the candidate is the
charge of implementing the plank as
decided by the party........ In my view,
in cases like this, where the plank has
been declared by the leader of the party
and the leader of the party has complete
control of the affairs of the party,
once it is proved and held, that the
plank declared by the leader amounts to
a corrupt practice, every candidate of
that party will be bound by that
plank...... As is set out hereafter,
prima-facie it does appear that the
plank of Hindutva/Hinduism, as declared
by the leaders at these two meetings
amounts to the corrupt practice of
appealing for votes in the name of the
Hindu candidates religion and also
amounts to the corrupt practice of
attempting to create enmity and hatred
between different classes of citizens on
the grounds of community and religion,
particularly between Hindus and
Muslims......."
It is this perception of Variava, J. which has coloured
his entire judgment and led to the decision of the election
petition, not confined to the record of the case but
extending to all the general impressions.
An objection expressly taken to the validity of the
notices that they could not be issued after the election
petition had been decided by making an order under Section
98 of the R.P. Act was rejected by order dated 6.1.1992. The
connected Civil Appeal No. 93 of 1992 by Chhagan Bhujbal,
Civil Appeal No. 94 of 1992 by Pramod Mahajan and Civil
Appeal No. 2396 of 1992 by Balasaheb Thackeray, are against
the order dated 6.1.1992 passed by Variava, J. rejecting the
objections of these notices to the validity of notice issued
under Section 99 of the R.P. Act. The inquiry required to be
made under Section 99 of the R.P. Act has not yet been made
in the High Court against any of the notices in view of the
pendency of these appeals. It may be mentioned that two
remaining notices Pramod Navalkar and Manohar Joshi had
filed Civil Appeal No. 149 of 1992 and Civil Appeal No. 795
of 1992 against rejection of their objections to the notices
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but those appeals have been summarily dismissed on 19.8.1993
and 7.9.1993 apparently leaving open the question of
validity of the notices to be decided at a later stage.
There is no dispute at the hearing of these appeals that the
case of all the five notices has to be dealt with in the
same manner depending on the final outcome of these appeals.
We would now consider the points which arise for
decision.
Dismissal of Election Petition under Section 86 of the R.P.
Act, 1951.
The first submission in these appeals is that the
election petition was liable to be dismissed under Section
86 of the R.P. Act for non-compliance of sub section (1) of
Section 81, inasmuch as the election petition was filed
after expiry of the prescribed period of 45 days from the
date of election. Acceptance of the nominations of the
candidates was on 8.2.1990, the date of poll was 27.2.1990
and the result of election was declared on 1.3.1990 at which
Ramakant Mayekar was declared elected. The election petition
was filed on 16.4.1990. Admittedly the last date for filing
the election petition according to the prescribed period of
45 days was 14.4.1990, but the High Court and its office
were closed for holidays on 14th and 15th April, 1990 and
reopened only on 16.4.1990. If Section 10 of the General
Clauses Act applies, then the election petition filed on
16.4.1990 was within time. We have already held in the
connected Civil Appeal No. 4973 of 1993 - Manohar Joshi vs.
Nitin Bhaurao Patil & Anr. - decided today, that Section 10
of the General Clauses Act applies to an election petition.
It must, therefore, be held that this election petition was
filed within time. This argument on behalf of the appellant
is, therefore, rejected.
Meaning and Effect of Sections 98 and 99 of the R.P. Act,
1951.
The next question for consideration is the legality of
deciding the election petition and declaring the election of
the returned candidate to be void by making an order under
Section 98 of the R.P. Act, and then proceeding to issue
notice under Section 99 to the aforesaid five persons on the
basis of speeches alleged to have been made by them on
29.1.1990 and 24.2.1990 which form the basis of the ground
under Section 100(1)(b) for declaring the election to be
void. The question really is: Whether notice under Section
99 of the R.P. Act can be issued for commission of a corrupt
practice, after making an order deciding the election
petition and declaring the election of the returned
candidate to be void? This specific objection taken by the
notices has been rejected by Variava, J. The legality of
this view arises for consideration.
As for the speeches alleged to have been made on
29.1.1990, it may be stated at the outset that they have to
be excluded from consideration since they cannot form the
basis of any corrupt practice at the election, inasmuch as
they relate to a period prior to the date on which Ramakant
Mayekar became a candidate at the election as defined in
Section 79(b) of the R.P. Act. This is the settled position
in law. [See Subhash Desai vs. Sharad J. Rao and Others,
1994 Supp. (2) SCC 446; Indira Nehru Gandhi vs. Raj Narain,
1975 Supp. SCC 1; Mohan Rawale vs. Damodar Tatyaba, 1994 (2)
SCC 392]. This was the undisputed position at the hearing of
these appeals before us since the speeches mad eon 29.1.1990
were prior to the date on which Ramakant Mayekar became a
candidate at the election. It follows necessarily that the
impugned judgment as well as the subsequent notices issued
under Section 99 of the R.P. Act, are unsustainable to the
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extent they are based on the speeches alleged to have been
made on 29.1.1990. No further discussion is necessary for
holding that part of the impugned judgment dated 5th/6th
August, 1991, notices under Section 99 of the R.P. Act and
the subsequent order dated 6th January, 1992 as contrary to
law and, therefore, liable to be set aside for this reason
alone.
It is only the surviving part of the impugned judgment
and the notices which require further consideration, for
which purpose the question for decision at the threshold is
the validity of the course adopted of deciding the election
petition and declaring the election of the returned
candidate to be void and then proceeding to give notices for
taking action under Section 99 of the R.P. Act.
We have already indicated the combined effect of
Sections 98 and 99 of the R.P. Act in the connected Civil
Appeal No. 4973 of 1993 - Manohar Joshi vs. Nitin Bhaurao
Patil & Anr. - decided today. The correct legal position has
been overlooked by the High Court.
The High Court appears to have misread the decision of
this Court in D.P. Mishra vs. Kamal Narayan Sharma and Anr.,
1971 (1) SCR 8, to form the opinion that the course adopted
by it was permissible under Section 99 of the R.P. Act. The
question in that case was of the failure to issue notice
under Section 99 of the R.P. Act to a person alleged to have
committed the corrupt practice for which the returned
candidate also was guilty. The High Court, in the appeal,
did not comply with the requirement of Section 99 for
avoiding further delay. This Court rejected that view as
incorrect and held as under :
"We are unable to agree with the
view so propounded by the High Court.
Under s. 99 of the Act the Court has no
discretion in the matter, if the Court
was of the view that any person who is
proved at the trial to have been guilty
of any corrupt practice, not to name
that person. It is true that preliminary
objections were argued at an earlier
stage, but Sharma could not before the
appeal was heard ask the Court to issue
a notice under s. 99 of the Act on the
footing that his case which was rejected
by the Tribunal will be accepted. The
duty under the Act is cast upon the
Court or the Tribunal, and on the ground
that the party has not applied for a
notice, the High Court could not avoid
the obligation imposed by statute to
take proceeding under s. 99 against the
person proved at the trial to have been
guilty of corrupt practice and to name
him. We fail also to appreciate the
ground on which the High Court has
referred to delay being an "outweighing
factor". Shyamacharan Shukla was however
not a party to the proceeding and before
he could be named a notice must go to
him under s. 99 of the Act.
We direct that the proceeding be
remanded to the High Court and the High
Court do give notice to Shyamacharan
Shukla under s. 99 of the Representation
of the People Act, 1951, to appear and
to show cause why he should not be named
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for committing corrupt practices. If
Shyamacharan Shukla appears in pursuance
of the show cause notice he will be
entitled to an opportunity of cross-
examining witnesses who have already
been examined by the Tribunal and has
given evidence against him and he will
be entitled to give evidence in his
defence and of being heard.....
(at pages 29-30)
There is nothing in this decision to support the view
taken by the High Court that it could decide the election
petition and make an order under Section 98 declaring the
election of the returned candidate to be void and then
proceed under Section 99 of the R.P. Act against the other
persons.
It is, therefore, clear that the impugned judgment
dated 5th/6th August, 1991 declaring the appellant’s
election to be void and the subsequent order dated 6.1.1992
rejecting the preliminary objections to the notice issued
subsequently under Section 99, both by Variava, J., are
contrary to law and have to be set aside. We have not to
determine the nature of the final order to be made.
Speeches
We have already indicated that the speeches alleged to
have been made on 29.1.1990 are irrelevant and have to be
excluded from consideration as earlier stated. In respect of
the speeches alleged to have been made on 24.2.1990, the
relevant portions of the impugned judgment are as under :
"The question then is whether the
Respondent was also present at the
meeting held on 24th February 1990. Here
again the petitioner has admitted that
her only source of knowledge are
newspaper reports. In this case however,
not a single newspaper report support
the case that all 34 candidates were
present or that the Respondent was
present....... Thus the only evidence of
Respondent’s presence at this meeting is
this photo. The court has looked at the
photo and the Respondent a number of
times. It is not possible to
categorically state that this is the
photo of the Respondent. If that be so,
then the benefit of doubt must be given
to the Respondent. Thus, there is no
evidence before this court to show that
the Respondent was present at the
meeting held on 24th February 1990. If
that be so, then the question of
considering the Respondent’s case, why
he was not present at this meeting does
not arise at all. It was for the
petitioner to satisfy the court that the
Respondent was present at this meeting.
The petitioner has failed to do that.
Therefore, so far as the meeting of 24th
February, 1990 is concerned, it is not
possible to hold that the Respondent was
present at that meeting."
(emphasis supplied)
The above finding relating to speeches by some persons other
than the appellant can have relevance only if the element of
appellant’s consent is also pleaded and proved. The
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appellant’s consent was attempted to be made out by
implication only from the fact of his personal presence when
those speeches were made. However, the above conclusion
reached by the High Court shows that the appellant’s
presence at the meeting was not found to be proved. This
being so, the element of candidate’s consent which is a
constituent part of the corrupt practice alleged on the
basis of speeches made on 24.2.1990 by some other persons
has not been found proved. That finding alone is sufficient
to reject the allegation of corrupt practice on the basis of
speeches made by others on 24.2.1990, as not proved. When
this is the conclusion reached in respect of the appellant
himself with regard to the allegation of corrupt practice
based on speeches made by others on 24.2.1990, then the
question of recording a finding that the corrupt practice
has been proved, does not arise and, therefore, the further
question of naming any other person who could have been
proved at the trial to be guilty of the corrupt practice
under Section 99 of the R.P. Act does not arise.
The pleading in respect of speeches made in the public
meeting held at Shivaji Park, Dadar on 24.2.1990 is in paras
22, 23 and generally in para 27 of the election petition.
These are the only portions of the election petition on
which reliance is placed by learned counsel for the
respondent as the pleading on this point. It is pleaded in
para 22 that the speeches were made by Bal Thackeray and
other leaders of the alliance in that meeting where the
present appellant (respondent in the election petition) and
all other candidates of Shiv Sena - BJP alliance were
present. Thereafter, in paras 23 and 27, there is only a
general averment that the appeal made by Bal Thackeray and
other leaders to the voters was with the consent of the
appellant (respondent in the election petition). No fact
other than the averment of personal presence of the
appellant was pleaded to make out the consent of the
appellant required for constituting the corrupt practice. As
earlier indicated, the High Court has held that the presence
of the appellant at that meeting has not been proved. Thus,
the only basis for pleading and attempting to prove the
appellant’s consent to the making of those speeches in the
meeting held on 24.2.1990 has been held to be not proved.
There is thus no foundation even for a tentative finding of
any corrupt practice on the basis of speeches alleged to
have been made by Bal Thackeray and some other leaders in
this case against the present appellant, inasmuch as a
necessary ingredient of the corrupt practice, i.e., consent
of the appellant has been found to be not proved. There
being not even a tentative basis to hold the charge of this
corrupt practice proved against the appellant, the further
question of invoking Section 99 to name any other person for
the commission of that corrupt practice along with the
returned candidate does not arise.
In short, the finding of corrupt practice against the
appellant on the basis of speeches alleged to have been made
by some leaders in the meeting of 24.2.1990 being
unsustainable, this charge has to fail and no occasion
arises in the present case for taking any action under
Section 99 of the R.P. Act. This part of the impugned
judgment as well as the remaining part of the notices under
Section 99 of the R.P. Act also have to be set aside.
The only surviving question now is whether the impugned
judgment, to the extent it survives against the appellant on
the basis of wall paintings and video cassettes can be
sustained.
Wall Paintings
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After the above conclusion reached in respect of the
speeches alleged to have been made by some leaders on
29.1.1990 and 24.2.1990 for the reasons already given, the
only remaining findings of corrupt practice recorded by the
High Court are based on certain wall paintings and video
cassette which have been found to constitute the corrupt
practices under Section 123(3) and 123(3A) of the R.P. Act.
We would now examine these findings on merits.
The pleading relating to the allegation of corrupt
practice based on wall paintings is contained in para 21 of
the election petition which is as under :
"The petitioner states that the
respondent and his agents with the
consent of the respondent have also used
posters, banners and wall paintings
canvassing to vote for the respondent,
appealing the voters to vote for the
respondent in the name of Hindu
religion. The petitioner has got the
photographs taken of such wall
paintings. The petitioner craves leave
to refer to and rely upon the said
photographs as and when produced."
(emphasis supplied)
Except for repeating the words of the statute
prescribing the corrupt practice, there is no pleading of
the material facts or any particulars necessary to
constitute the corrupt practice as required by Section 83(1)
of the R.P. Act. Reference is made to certain photographs of
the alleged wall paintings and it has been said that the
photographs would be relied on as and when produced. The
contents or form of the wall paintings or their photographs
has not been pleaded and the photographs referred in para 21
of the election petition were neither annexed to the
election petition nor copy thereof furnished to the returned
candidate along with a copy of the petition. Thus, there is
no pleading in the election petition of the language or
contents of the wall paintings which were alleged to
constitute the corrupt practice of canvassing for votes in
the name of Hindu religion.
If the mere mention of photographs without indicating
its contents in the election petition is to be construed as
incorporation of its contents by reference in the election
petition, then non-supply of the copy of the photographs
with the copy of the election petition would result in non-
compliance of Section 81(3). However, since the photographs
were not annexed to the election petition, it is a case not
of non-compliance of Section 81(3) but a case of total
absence of any pleading in the election petition of the
corrupt practice on the basis of wall paintings. Therefore,
the pleading being wholly deficient in material facts
necessary to constitute the cause of action, it was
insufficient to raise a triable issue on that basis. In
fact, this part of the pleading was liable to be struck out
since it was irrelevant at the trial for the reason stated.
It is clear that any evidence adduced later, in the absence
of the requisite pleading of this corrupt practice was
irrelevant and inadmissible and should not have been
recorded and having been recorded must be excluded from
consideration. The finding of the High Court of any corrupt
practice being proved on this basis is contrary to law, and
has to be set aside for this reason alone.
In view of the above conclusion in relation to the wall
paintings, any further discussion of the finding recorded by
Variava, J. on this question would be unnecessary but for
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the serious grievance made to the mode of the trial. Since
the finding reflects the common perception which influenced
the trial and decision of the several election petitions in
the High Court as mentioned in the impugned judgment, it
becomes necessary to refer to the discussion on this point
in the impugned judgment.
As indicated earlier, no triable issue arose in the
absence of proper pleadings relating to the corrupt practice
alleged on the ground of wall paintings, much less an
occasion for a finding adverse to the returned candidate on
this point. Surprisingly, evidence was recorded of the
alleged contents of the said wall paintings through
production of certain photographs later at the trial. A
description of what is seen in these photographs is given in
the impugned judgment to indicate that they showed the
saffron flag and election symbol of the Shiv Sena and sought
votes for the Shiv Sena candidates. The judgment then refers
to the English translation of the slogans therein which
reads, as under :
"...... In order to remove the
brokers of corruption, let us throw
around the Gulal of Hindutva"..... "the
lady sits angrily in Delhi Court, save
Maharashtra by electing Sena-BJP".......
"Our determination is firm. Stamp on the
Bow and Arrow" and "Keep Hindutva awake,
elect the bow and arrow."....... "for
the protection of fiery Hindutva the
Shiv Sena BJP candidate......"
The judgement then proceeds to hold as
under :
"...... There can be no doubt that the
"Hindutva" in these wall-paintings is
the same "Hindutva" contained in the
video cassettes "Awahan and Avhan". They
are therefore an appeal to vote for Shiv
Sena BJP candidates viz. The Respondent
for protection of that "Hindutva". As is
set out hereafter an appeal in the name
of "Hindutva" amounts to an appeal to
vote for the Hindu candidates of Shiv
Sena BJP on the ground of their religion
and also amounts to the corrupt practice
or creating enmity and hatred amongst
different classes of citizens on the
grounds of religion and community. These
paintings on walls and pipelines
therefore amount to having appealed to
the voters to vote for the Respondent on
the ground of his religion and also
amount to the corrupt practice of
creating enmity and hatred amongst
different classes of citizens on the
grounds of religion and community."
Thereafter, the discussion relates to the consent of the
candidate which is unnecessary in view of the earlier
conclusion.
The tenor of the impugned judgment, particularly the
above extract, leaves no doubt that the High Court was of
the view that any appeal for votes wherein was made of
"Hindutva" is by itself sufficient to amount to an appeal
for votes for the Hindu candidates of Shiv Sena-BJP on the
ground of their religion and is a corrupt practice or
creates enmity and hatred amongst different classes of
citizens on the grounds of religion and community. The above
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extract from the decision itself is sufficient to indicate
the erroneous perception in this behalf which is clearly
contrary to law. The distinction between sub-section (3) and
(3A) of Section 123 which are two different corrupt
practices, was totally lost sight of, and obliterated.
Moreover, the use of the word "Hindutva" in the abstract was
understood by the High Court to amount to an appeal for
votes on the ground of Hindu religion if the candidate
happened to be a Hindu to constitute the corrupt practice
under sub-section (3); and at the same time this alone
without anything more has been held to also constitute the
corrupt practice under sub-section (3A) of Section 123,
totally obliterating the distinction between these two sub-
sections of Section 123 constituting two different corrupt
practices. Unfortunately, this erroneous construction of the
statute leading to the formation of a wrong perception, led
the High Court to commit the several errors commencing with
the treating of deficient pleadings to be sufficient to
raise a triable issue of a corrupt practice. This
extraordinary procedure, impermissible in law, led to
reception of considerable irrelevant and inadmissible
evidence for which no basis can be found in the election
petition.
In short, the trial of the election petition became a
roving inquiry into the affairs of a political party when
the only concern at the trial should have been the merit of
the charge of corrupt practices attributed to the returned
candidate at the election. Actions of the party were
relevant only to the extent relatable to the returned
candidate, in the manner pleaded in the election petition.
Unfortunately, this crucial factor was overlooked by the
High Court in the trial of the election petition.
In the abstract, the meaning of the word "Hindutva" is
not confined only to Hindu religion unrelated to Indian
culture and heritage and it is the context and the manner of
its use which determines its true meaning in a particular
speech. The kind of use made of the word "Hindutva", the
context and the composition of the audience to which the
speech is addressed, are all significant. In the connected
Civil Appeal No. 2453 of 1991 - Shri Suryakant Venkatrao
Mahadik vs. Smt. Saroj Sandesh Naik (Bhosale) - decided
today, we have indicated how the use of the word "Hindutva"
in the context and in the circumstances in which it was used
in that case amounted to an appeal for votes on the ground
of Hindu religion for a Hindu candidate. As a proposition of
law, it cannot be said that in the abstract, the mere use of
the word "Hindutva" during an election campaign must
necessarily mean an appeal on the ground of Hindu religion
for a Hindu candidate. We have discussed this question at
some length in the connected Civil Appeal No. 2835 of 1989 -
Bal Thackeray vs. Prabhakar K. Kunte and Ors. - (with Civil
Appeal No. 2836 of 1989) decided today. It is unnecessary to
reiterate the same herein.
What is forbidden by law is an appeal by a candidate
for votes on the ground of ‘his’ religion or promotion etc.
of hatred or enmity between groups of people, and not the
mere mention of religion. There can be no doubt that mention
made of any religion in the context of secularism or for
criticising the anti-secular stance of any political party
or candidate cannot amount to a corrupt practice under sub-
section (3) or (3A) of Section 123. In other words it is a
question of fact in each case and not a proposition of law
as understood and enunciated by the High Court.
The view taken by the High Court in the impugned
judgment indicates a wrong perception based on a mis-
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construction of sub-sections (3) and (3A) of Section 123,
obliterating at the same time the distinction in the two
corrupt practices defined in these two provisions. The
finding of the High Court of proof of the corrupt practice
based on wall paintings in also, therefore, set aside.
Video Cassette
The only surviving question now relates to the corrupt
practice alleged on the basis of certain video cassettes.
The pleading is in paras 15 to 18 of the election petition.
There is a general averment that the alliance had taken out
video cassettes for the purpose of its election campaign and
that they were exhibited at various places in the
constituency. It is alleged that the contents of the video
cassettes amounted to appeal for votes in the name of Hindu
religion and they tended to create enmity and hatred amongst
the voters on the basis of caste, creed and religion. The
only specific fact pleaded apart from the general averment,
contained in para 18 is as under :-
"..... Bal Thackeray also boasted
that if any one is obstructing the Hindu
religion, he will fix him. That they
(Shiv Sena) will stop all offering of
"Namaz" on roads and bring down the
loudspeakers from the mosques. Bal
Thackeray has gone to the extent of
coaxing the voters to scream aloud that
they will not tolerate any one coming
into power with the help of Muslim
votes."
It is significant that here also the pleadings are deficient
and the only averment which may be treated as specific is
the above extract attributing certain speech to Bal
Thackeray of which also no particulars are given. The
requisite pleading of the candidate’s consent for this act
of Bal Thackeray to constitute a corrupt practice by the
candidate (appellant) is not pleaded apart from the general
pleading of consent elsewhere.
This state of pleading relating even to the video
cassettes, when the video cassettes or its transcript were
not produced along with the election petition or its copy
furnished with the copy of the election petition to the
appellant, is a serious defect in the pleading which once
again has been totally overlooked at the trial of this
election petition. This again has resulted in raising an
issue for which the requisite pleadings were not there and
then admitting considerable evidence which is irrelevant and
inadmissible. We have considered this question at length in
the connected Civil Appeal No. 4973 of 1993 - Manohar Joshi
vs. Nitin Bhaurao Patil & Anr. - decided today. For the same
reasons, the entire issue relating to the corrupt practice
based on the video cassettes has to be excluded from
consideration.
Even otherwise the only specific pleading on the point
which is extracted above is insufficient to plead this
corrupt practice against the appellant, howsoever
reprehensible it may be in relation to the alleged conduct
of Bal Thackeray. The more fact that Bal Thackeray was
leader of Shiv Sena of which party the appellant was a
candidate is by itself not sufficient to hold any candidate
guilty of the corrupt practice on the basis of an act done
by Bal Thackeray unless that liability can be fastened on
the candidate on further proof that the act was done with
the consent of the candidate or the display of that cassette
was made with the candidate’s consent at the specified time
and place etc. during his election campaign. All these
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material facts were required to be pleaded and proved, but,
instead, they have been assumed and even the finding is not
related to any such specific act.
The requisite consent of the candidate cannot be
assumed merely from the fact that the candidate belongs to
the same political party of which the wrong doer was a
leader since there can be no presumption in law that there
is consent of every candidate of the political party for
every act done by every acknowledged leader of that party.
The corrupt practice for which a candidate can be held
vicariously guilty for an act of any other person who is not
his agent in whose favour general authority is presumed,
must be pleaded and proved to be with the consent of the
candidate. Obviously, it is so because the penal
consequences resulting from the finding of a corrupt
practice against the candidate are visited on the candidate
including the setting aside of his election. The High Court
assumed for the purpose of pleading as well as proof that no
specific pleading or proof of consent of the candidate was
necessary if the act was attributed to any leader or even a
member of the same political party. The distinction between
the ground in Section 100(1)(b) on which the election
petition was allowed and that under Section 100(1)(d)(ii)
was completely missed. Admittedly, the ground under Section
100(1)(d)(ii) is neither the basis of the election petition
nor is it of the judgment of the High Court.
It is this erroneous assumption made of the law as an
abstract proposition, which has resulted in the several
serious errors in the trial as well as in the impugned
judgment. This discussion is sufficient to set aside the
only remaining finding against the appellant.
From the above discussion, it follows that the findings
on all points against the appellant, of the corrupt
practices held to be proved against the appellant, have to
be set aside, and so also the impugned judgment dated
5th/6th August, 1991, resulting in dismissal of the election
petition. The notices issued by the High Court under Section
99 of the R.P. Act to Chhagan Bhujbal, Bal Thackeray, Pramod
Mahajan, Manohar Joshi and Pramod Navalkar after conclusion
of the trial must also be quashed for the above reasons.
The result of this decision is that the inquiry against
Pramod Navalkar and Manohar Joshi pending in the High Court
in this matter also terminates.
The appeals are allowed. The appellant Ramakant Mayekar
would get costs throughout from the respondent Smt. Celine
D’Silva (election petitioner). The other parties will bear
their own costs throughout.