# DR. DAS RAO DESHMUKH v. KAMAL KISHORE NANASAHEB KADAM AND ORS

- **Citation:** [1995] Supp. 2 S.C.R. 148
- **Court:** Supreme Court of India
- **Decided:** 1995-07-14
- **Case number:** Civil Appeal No. 3169 of 1991
- **Bench:** G.N. Ray, Faizan Uddin
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-das-rao-deshmukh-v-kamal-kishore-nanasaheb-kadam-and-ors-13088
- **Pages:** 23

## Headnote

Representation of People Act 1951-Sec. 123(3) and 123(3A)
"Conupt practice''-Meaning of
Election petition filed-Challengi.ng the election of the appellant on the
grounds of conupt practice~Election campaign conducted on the basis of
Hindu religi.on-Attempted to promote hatred between the two communities
namely the Hindus and the Muslim~Aroused communal passions.
D
Speeches delivered in election meeting~To be appreciated, dispassionately keeping in mind, the context they are made-{]se of hyperbole or
exaggerated language or adoption of metaphors and extravagence of expression in attacking one another-Very common during elections.-Hence must
consider the real thrust of the speech-Whether intended to generate improper
passions on the score of religi.on, caste and community-Regard must be had
E
to be substance of the matter rather than mere f omi or phraseology.
F
Display of poster~Appeal to vote for appellant for the purpose of
"teaching a lesson to the Muslims''-Potentially offensive-Likely to bring
dishamwny between the two communitie~Wh.ether sufficient to prove corrupt practice.
Legislative Assembly elections were held in the State of Mahar?shtra
in February, 1990. The appellant, having secured the highest votes was
declared elected from the Nanded constituency in the State.
G
An election petition was filed by the respondent challenging the said
election, on the grounds of corrupt practices.
By its judgment and order, the High Court of Bombay, Aurangabad
Bench, set aside the said election, holding that the appellant had indulged
in corrupt practice within the meaning of the provisions of Sec. 123(3) and
H
123(3A) of the Representation of People Act, 1951 (hereinafter referred to
148
D.R. DESHMUKH v. N.KN. KADAM
149
as the "Act").
Aggrieved by the impugned judgment, the appellant preferred an
appeal before this Court on the grounds that (a) The expression "consent"
in relation to corrupt practice as used in Sec. 123(3) and 123(3A) of the
A
Act may be proved both by direct and circumstantial evidence. The standB
ards applied in the criminal law must also be applied while assessing such
circumstantial .evidence. It must not be a mere knowledge of, or connivance
at, a corrupt practice and hence must be proved in the same way as a
criminal charge is proved. (b) In construing the provisions of Sec. 123(3)
and 123(3A) of the Act widest possible latitude ought to be given to the
expression of opinion in the context of democratic discourse so as not to
infringe on the Fundamental Rights guaranteed under Art. 19(1)(a) of the
Constitution. Also the restriction envisaged by Art. 19(2) of the Constituc
tion ought to be strictly construed in such cases. (c) In a plural society
such as ours, debates on issues pertaining to religion, secularism, language policy, reservation policies etc. do come up during elections and D
hence if mere references to such issues are construed as falling within the
mischief of Sec. 123(3) of the Act, it would result in stifling the debates on
such contemporary issues. (d) As has been held by this Court in Ku/tar
Singh v. Mukhtiar Singh, AIR (1965) SC 141, documents such as election
posters must be read as a whole and its purport and effect determined in E
a fair, objective and reasonable manner. (e) It must not be ignored that
during elections, the atmosphere is generally surcharged with partisan
feelings and use of exaggerated language and expression in attacking one
another is very common. Hence the speeches delivered and pamphlets
distributed during such election meetings must be construed in that light.
(t) This Court has in Ebrahim Suleiman Sait v. M.C. Mohammed & Another,
(1980) 1 sec 398 ( 402-403) held that in several parties, membership is
predominantly held by members of a particular community or religion and
hence the election of candidates of such parties in an indirect way may be
influenced by consideration of religion, race caste, community or language.
F
(g) Presence of the appellant at the meet

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A
B
c
DR. DAS RAO DESHMUKH
v.
KAMAL KISHORE NANASAHEB KADAM AND ORS.
JULY 14, 1995
[G.N. RAY, FAIZAN UDDIN, JJ.]
Representation of People Act 1951-Sec. 123(3) and 123(3A)
"Conupt practice''-Meaning of
Election petition filed-Challengi.ng the election of the appellant on the
grounds of conupt practice~Election campaign conducted on the basis of
Hindu religi.on-Attempted to promote hatred between the two communities
namely the Hindus and the Muslim~Aroused communal passions.
D
Speeches delivered in election meeting~To be appreciated, dispassionately keeping in mind, the context they are made-{]se of hyperbole or
exaggerated language or adoption of metaphors and extravagence of expression in attacking one another-Very common during elections.-Hence must
consider the real thrust of the speech-Whether intended to generate improper
passions on the score of religi.on, caste and community-Regard must be had
E
to be substance of the matter rather than mere f omi or phraseology.
F
Display of poster~Appeal to vote for appellant for the purpose of
"teaching a lesson to the Muslims''-Potentially offensive-Likely to bring
dishamwny between the two communitie~Wh.ether sufficient to prove corrupt practice.
Legislative Assembly elections were held in the State of Mahar?shtra
in February, 1990. The appellant, having secured the highest votes was
declared elected from the Nanded constituency in the State.
G
An election petition was filed by the respondent challenging the said
election, on the grounds of corrupt practices.
By its judgment and order, the High Court of Bombay, Aurangabad
Bench, set aside the said election, holding that the appellant had indulged
in corrupt practice within the meaning of the provisions of Sec. 123(3) and
H
123(3A) of the Representation of People Act, 1951 (hereinafter referred to
148
D.R. DESHMUKH v. N.KN. KADAM
149
as the "Act").
Aggrieved by the impugned judgment, the appellant preferred an
appeal before this Court on the grounds that (a) The expression "consent"
in relation to corrupt practice as used in Sec. 123(3) and 123(3A) of the
A
Act may be proved both by direct and circumstantial evidence. The standB
ards applied in the criminal law must also be applied while assessing such
circumstantial .evidence. It must not be a mere knowledge of, or connivance
at, a corrupt practice and hence must be proved in the same way as a
criminal charge is proved. (b) In construing the provisions of Sec. 123(3)
and 123(3A) of the Act widest possible latitude ought to be given to the
expression of opinion in the context of democratic discourse so as not to
infringe on the Fundamental Rights guaranteed under Art. 19(1)(a) of the
Constitution. Also the restriction envisaged by Art. 19(2) of the Constituc
tion ought to be strictly construed in such cases. (c) In a plural society
such as ours, debates on issues pertaining to religion, secularism, language policy, reservation policies etc. do come up during elections and D
hence if mere references to such issues are construed as falling within the
mischief of Sec. 123(3) of the Act, it would result in stifling the debates on
such contemporary issues. (d) As has been held by this Court in Ku/tar
Singh v. Mukhtiar Singh, AIR (1965) SC 141, documents such as election
posters must be read as a whole and its purport and effect determined in E
a fair, objective and reasonable manner. (e) It must not be ignored that
during elections, the atmosphere is generally surcharged with partisan
feelings and use of exaggerated language and expression in attacking one
another is very common. Hence the speeches delivered and pamphlets
distributed during such election meetings must be construed in that light.
(t) This Court has in Ebrahim Suleiman Sait v. M.C. Mohammed & Another,
(1980) 1 sec 398 ( 402-403) held that in several parties, membership is
predominantly held by members of a particular community or religion and
hence the election of candidates of such parties in an indirect way may be
influenced by consideration of religion, race caste, community or language.
F
(g) Presence of the appellant at the meeting held on February 4, 1990 G
should not be construed as amounting to 'consent', as interpreted by this
Court in Balk1ish11a Samant v. George Femandez, AIR (1969) SC 1201 and
Haji CA. Mohd. Kaya v. T.K.S.MA. Muthukoya'. [1979) 2 SCC 8. The
speech delivered at the said meeting was made by Shri Bal Thakerey and
not by the appellant. Moreover even if it is assumed that the appellant
consented to the said speech, the speech when read as a whole does not H
150
SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A
satisfy the requirements of Sec. 123(3) and 123(3A) of the Act despite the
strong rhetorical language used. (h) Appeal to vote for Hindutva should
not be confused with appeal to vote only for a member of one community
namely the Hindus. (i) If the Court prima facie holds that the speech of
Shri Thakerey amounts to corrupt practice, within the provisions of the
B
c
Act and that the appellant had consented to the same, in absence of a
notice under Se~ 99 of the Act being issued to Shri Thakerey, no finding
of corrupt practice could have been rendered against the appellant. (j) If
a person who is not a party to an election petition but is liable to be held
guilty of corrupt practice a notice under Sec. 99 of the Representation Act
is to be issued to him and the Court has no discretion in such matter. (k)
The meeting held on 9th February, 1990 at Nanded constituency was in
reality a long discussion with party men and sympathisers and did not
assume the formal character of a speech but was part of the inauguration
of the election campaign. (1) As regards the posters used in the election
campaign, the evidence relied upon by the High Court does not connect
D
the appellant or his election agent with the same. (m) Manifestation of
popular choice should not be easily interfered with unless_ there is proof
that a corrupt practice has been resorted to. (n) If strict standards
required to be established are applied, corrupt practice has not been
E
F
established in the instant case.
The respondent resisted the appeal contending that: (a). The appellant was a nominee of the Shiv Sena. Having attended the election meeting
on 4.2.1990 and publicly seeking the blessings of Shri Thakerey, the appellant cannot deny to have subscribed to the speech made by Shri Thackerey
in the said meeting. (b). It is not the case that he protested to any part of
Shri Thackereys speech or even explained h~s own view points to the public,
thereby indicating that he had indeed subscribed to the statements of the
speaker in its entirety. (c). There is enough clinching and unimpeccable
evidence to prove that the meeting held on 9.2.90 in Nanded was an election
campaign meeting, well attended by a large section of the public, in which
a number of Shiv Sena and BJP leaders appealed to the public to vote for
G the appellant on the score of religion. (d). Posters·were displayed during
the election campaign of the appellant appealing to the public to vote for
him, to "teach a lesson to the Muslims". Convincing evidence has been led
to prove that such posters were displayed at the residence of the appellant
and his election agent and, therefore, it does not lie in the mouth of the
H appellant to contend that some independent agency without his authority
- -,
D.R. DESHMUKH v. N.K.N. KADAM
151
had displayed such posters for which he cannot be held responsible. (e). A
The said posts were per se offensive, because alongwith an appeal to vote
for the appellant, a statement was made therein, to the effect that the
Muslims, must be taught a lesson. This, in any event, was intended to
arouse communal passions and bring disharmony between the Hindus and
the Muslims. Hence, on that score alone, the appellant must be held to be
guilty of corrupt practice under the provisions of the Act. (f). As has been
held by this Court in S. Harcharan Singh v. Sajjan Singh and Ors., AIR
(1985) SC 236, the paramount and basic purpose underlying Sec. 123(3)
of the Act is concept of secular democracy. The said provision was enacted
B
to eliminate from the electoral process appeals to divisive factors such as
religion, caste etc., which give vent to irrational passions. It is, therefore, C
essential that powerful emotions generated by religion should not be
permitted to be exhibited during elections, so that choice of the people is
not coloured in any way. (g). In order to determine whether certain
adivities come within the mischief of Sec. 123(3), regard must be had to
the substance of the matter, rather than to the mere form or phraseology. D
The inhibition of Sec. 123(3) and 123(3A) should not be permitted to be
circumvented indirectly or by circuitous or subtle devices. (h). An order
under Sec. 99 of the Act need not be passed simultaneously with an order
under Sec. 98 of the Act. The proceeding against the returned candidate
and all those who are parties to the petition should be treated as separate
and distinct from the proceeding against collaborators.
·
E
Dismissing the appeal, this Court
HELD : 1. In ·view of the next election already held in February, 1995,
the instant appeal would have become infructuous, but considering the
finding of the High Court that the appellant had indulged in corrupt
practice under Sec. 123(3) and 123(3A) of the Representation of People
Act, which has serious consequences, a decision of the appeal on merits is
necessary. (153-F] .
F
2. Speeches delivered in election meetings should be appreciated G
dispassionately, keeping in mind the context in which they are made. Use of
hperboles or adoption of metaphor in attacking one party or candidate are
very common, and the Court should consider the real thrust of the speech
without labouring to dissect one or two sentences of the speech. (169-C]
3. In deciding whether a party or their collaborators had indulged H
152
SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.
A
in corrupt practice, regard must be had to the substance of the matter
rather than mere form or phraseology. (169-D]
B
c
Kultar Singh v. Mukhtiar Singh, AIR (1965) SC 141, referred to.
4. The use of posters, which made an appeal to vote, in order to "reach
a lesson to the Muslims, to say the least, was potentially offensive and likely
to rouse passion in the minds of the voters on a communal basis. Such an
appeal was likely to bring disharmony between the Hindus and Muslims
and offend the secular structure of the country. Use of such poster is by
itself sufficient to hold that the candidate had indulged in corrupt practice
under Sec.123(3) and 123(3A) of the Representation Act. [168-G-H, 169-A]
S. It has been fully established by cogent and convincing evidence
that the appellant had given publicity to the voters by exhibiting posters
which were per se, highly offensive, potentially vulnerable and likely to
bring hatred and misunderstanding between the Hindus and the.Muslims.
D Use of such posters cannot be justified in any manner even by giving
reasonable latitudes in election speeches. (170-B-C]
6. In the instant case, for the use and display of posters alone, the
appellant is guilty of corrupt practice, within the meaning of the provisions
of Sec. 123(3) and 123(3A) of the Representation of Peoples Act, for which
E
his election is liable to be set aside. It is therefore, not necessary in the
present case to consider the philosophy of Hindu religion and its tenets of
tolerance for the purpose of appreciating whether· the appeal was really
made for Hindutva or not. (166-E]
F
G
7. In the special fact of the case it may not be necessary to .consider
the disputed contentions whether the publicity of Shiv Sena and BJP
during the elections, amounts to publicity by or with the consent of the
appellant and whether such publicity can be construed as corrupt practice
under Sec. 123(3) and 123(3A) of the Act. (170-EJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3169 of
1991.
'
From the Judgment and Order dated 18.7.91 of the Bombay-High
Court in E.P. No. 8 of 1990.
H
Raju Ramachandran, Makrant Adkar, P.H. Parekh, S. Udey Kumar
.....
DR DESHMUKH v. N.KN. KADAM (G.N. RAY, J.]
153
Sagar and Amit Dhingra for the Appellants.
V.C. Kotwal, Girish Desai, Dr. R.B. Masodkar and K.L. Taneja for
the Respondents.
The Judgment of the Court was delivered by
G.N. RAY, J. This appeal is directed against the judgment dated July
18, 1991 passed by the Bombay High Court (Aurangabad Bench) in Election Petition No. 8 of 1991. The respondent No. 1 in this appeal, Sri Kamal
Kishore Nanasaheb Kadam preferred E~ection Petition No. 8 of 1991
before the Aurangabad Bench of the Bombay High Court inter alia challenging the election of the appellant Dr. Das Rao Deshmukh from AssembA
B
c
ly Constituency No. 170 Nanded in the Maharashtra Legislative Assembly
held ·on February 27, 1990. Having secured the highest vote in the said
election, the appellant was declared elected to the Maharashtra State
Legislative Assembly in the said election from the Nanded Assembly
Constituency. By the impugned judgment, such election of the appellant D
was declared null and void on the ground of corrupt practice indulged by
the appellant Dr. Das Rao Deshmukh under Section 123(3) and 123(3A)
of the Representation of People Act, 1951 (hereinafter referred to as the
Representation Act). The High Court, by the impugned judgment, also
awarded a cost of Rs. 10,000 against the appellant and in favour of the E
election petitioner. It may be indicated here that shortly after the hearing
of this appeal was concluded, the general election of the Maharashtra State
Legislative Assembly including the Nanded Assembly Constituency was
held in February, 1995. In view of such election, the contest as to general
election in 1990 would have lost, for all practical purposes, any importance
and this appeal would have become infructuous. But in view of the finding
of the High Court that the appellant had indulged in corrupt practice under
Section 123(3) and 123(3A) of the Representation Act which has serious
consequence concerning the appellant, a decision of this appeal on merit
is necessary.
F
In the election petition preferred by Sri Kamal Kishore Nanasaheb G
Kadam, the election petitioner alleged that the appellant Dr. Das Rao
Deshmukh was a nominee of Shiv Sena party in the said Nanded Constituency but he carried out his election campaign on the basis of Hindu
Religion and for that purpose promoted and attempted to promote communal hatred between two communities namely the Hindu and the Mus- H
154
SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A lims. The election petitioner gave detailed accounts as to how such campaign on the ground of religion was carried out by the appellant Dr. Das
Rao Deshmukh with the active support of his election agents and leaders
of Shiv. Sena and Bharatiya Janta Party (hereinafter referred to as BJP).
The last Assembly election in the State of Maharashtra was held on
B February 27, 1990. As per the schedule declared by the Election Commission for the 9th General Election for the Legislative Assembly for the State
of Maharashtra, the nomination papers were to be filed on February 3,
1990, nominations were to be scrutinised on the very same day. Last date
for withdrawal of nomination papers was February 7, 1990 and the result
C of election was to be declared on March 2, 1990. The election petitioner
was the Congress (I) nominee and the appellant Dr. Deshmukh was the
nominee of Shiv Sena party. The appellant secured 48465 votes and election petitioner secured 33270 votes. Chandrakant Bagve and Vinayak Partharkar respectively Shakha Pramukh of Shiv Sena and Local President of
the said Shakha were incharge of· the election campaign on behalf of Dr.
D Deshmukh. Shri Chander Shekhar Sonavane was the election agent of Dr.
E
F
Deshmukh. The election petitioner alleged that the Shiv Sena Party conducted election campaign by holding public meetings, distributing banners
and hand bills pamphlets, playing audio and video cassettes, depicting the
election manifesto as well as the election campaign of Shiv Sena. It was
alleged that Shiv Sena party had recorded two cassettes namely 'Avhan and
Awanan' and 'Ajinkya'. It was alleged that all such campaigns were with
the consent of Dr. Deshmukh. The election petitioner divided the allegations in Part II to Part VII of the election petition. The allegations about
the campaign on the basis of religion were indicated in Part V and Part
VI. Part VI is the synopsis of the particulars of the campaign which,
according to the election petitioner, were offensive. The classification in
those parts has been made with reference to various types of document,
cassettes, both audio and video for facilitating the understanding of the
allegations of the election petitioner. The organisation of the Shiv Sena
party was registered as political party on October 29, 1988. According to
G the election petitioner, the main idea of establishing the Shiv Sena party
was to promote and espouse the cause of Hinduism. The election petitioner
alleged that the Shiv Sena came out with the message in a daily newspaper
called "Samna" and the thrust of the said newspaper was that the Hindus
and the Hindu religion were to danger and that they needed awakening.
H The election petitioner further alleged that in Nanded constituency the said
.....
-
D.R. DESHMUKH v. N.k.N. KADAM (G.N. RAY, J.)
155
newspaper had wide circulation. The main allegation of the said Shiv Sena A
party was that Hindu religion was in peril in the hands of the ruling
Congress (I) party. It was alleged that during the entire tenure of the rule
by the Congress I, the said party had epoused the cause of Mohammadens
and Christians and it was required to be checked by constituting 'Hindu
Vote Bank'. The 'Supremo of Shiv Sena party Shri Balasaheb Thackerey B
had openly canvassed for capturing political power by indicating that such
power had to be owned by 'Dharmayudh'. It was alleged that when the
election of Shiv Sena candidate Dr. Ramesh Prabhoo from the Vile Parle
Constituency on December 13, 1987 was set aside on the ground that the
campaign was found to be in breach of Section 123(3) and 123(3A) of the
Representation Act, Shri Thackrey came out in the newspaper 'Samna' that
Hindus must unite. Hindu religion must grow and this concept should make
c
new Hindustan. Similar speeches were also delivered thereafter. It was
further alleged that on the eye of election of four Shiv Sena candidates at
the 9th Lok Sabha Elections, the same message was delivered by Shri
Thackerey and he declared that he would desire to hoist Saffron Flag at D
Vidhan Bhavan at Bombay. The election petitioner contended that the
appellant Dr. Deshmukh joined Shiv Sena and adopted the entire election
campaign carried out by Shiv Sena throughout the State of Maharashtra.
The said Shri Deshmukh also consented that persons named in para 3.02
of the election petition would campaign for him. The said list mentioned E
several names including the names of respondent Nos. 2 to 6 to the election
petition. In Part IV, the election petitioners gave the area of Nanded
Constituency No. 170 and in para 5, the detailed corrupt practice was
indicated. It was alleged by the election petitioner that on February 2, 1990,
there was an announcement by the Nanded Shakha of Shiv Sena party that F
the meeting would be addressed by Shri Balasaheb Thackrey on February
4, 1990 at about 1.30 p.m. and an advertisement was published in local
newspaper 'Godatir Samachar'. It was indicated that the meeting would be
held at Indira Gandhi Maidan where Dr. Deshmukh would remain present.
At the said meeting, Dr. Deshmukh was given a welcome by Shri Thackrey
and Shri Thackrey delivered a lengthy speech in the meeting. Shri Ashok G
Deshmukh, Nandu Kulkarni and Chandrakant Bagve also addressed the
same meeting. The report of such meeting and the speeches delivered
therein were published in 'Godatir Samachar on February 5, 1990. In the
said meeting, Shri Thackrey made a speech and he made no secret that he
sought votes on the plank of religion. The entire speech was tape recorded H
156
SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.
A
and there were audio and video cassettes of such speech. The synopsis of
the said speech was that Nanded was the city of Gurdwara and it should
be kept in mind that Guru of the Sikh religion had given kripan for
protection of the Sikh religion. He further stated that the Hindus were
leaving Kashmir and they were killed in Punjab. Shri Thackrey further
B
c
stated that the country was Hindustan and the Hinduism needed protection. Referring to the political leaders like Sharad ·Pawar and Shri V.P.
Singh, Shri Thackrey stated that they had only praised the Mohammadens
and Shri V.P. Singh visited Shahi-Imam after th.e elections but he did not
care for Hindu votes. Shri Thackrey warned that Hindus could not be
insubordinated are neglected and at the Assembly elections they would fly
the Saffron flag and rule in the State of Maharashtra. He stated that he
had the blessings of Tulja Bhavani, Goodess of Tuljapur and Goodess of
Shivaji Maharaj. He also indicated that the history was twisted and the facts
which would not be liked by Mohammadens had been altered. Shri Thackrey referred to a book written by Dr. Balasaheb Ambedkar "Ridders in
D Hinduism" published by the Government where Lord Rama and Lord
Krishna had been maligned. It was further stated by the election petitioner .
that Dr. Deshmukh also addressed by saying that it was a golden day at
Nanded because the feet of Balasaheb Thackrey had touched the soil of
Nanded .. The strength of Shri Balasaheb Thackrey should be the strength
of Hindustan and the Saffron flag should be hoisted at Vidhan Bhavan.
E
F
·G
With reference to 'Avhan and Awhan' the video tapes, it was contended by the election petitioner that in the said video tapes powerful
exhortation and inducement to the voters to vote on the ground of religion
had been made. There was an appeal that if a Muslim would try to destroy
Hinduism in Hindustan public would not keep quiet but take out the
intestines like that of Afzulkhan. It was also alleged that Muslims were loyal
to Pakistan and Urdu could not be the national language of Hindustan. An
appeal was also made to the fact that the Rulers would visit Muslims and
Mosques but not the Hindu temples and the Hindus should therefore
constitute a Vote Bank and should hoist Saffron Flag on the Assembly
building. The election petitioner alleged that the said tapes were circulated
in Nanded and other places.
The election petitioner also alleged that on February 9, 1990, the
inauguration meeting for commencement of the election campaign of Dr.
H Deshmukh was held at Shiwaji Maidan Stadium at Nanded. Shri
...
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D.R. DESHMUKH v. N.K.N. KADAM [G.N. RAY, J.]
157
Chandrakant, Shri Kirtane, Shri Nandu Kulkarni and others spoke. All of A
them championed the cause of Hinduism. The details of their speeches
would be seen in the video cassettes. It was also alleged that there had
been publicity through posters and pamphlets showing that the voters were
asked to vote on the basis of religion. On the car of election agent of Dr.
Deshmukh, Shri Sonwane, a poster was displayed which called upon the B
voters to vote iti the name of Hindu religion. Such posters wete displayed
at various places at Nanded. The election petitioner alleged that the
materials used for election campaign including the speeches delivered by
the speakers of Shiv Sena and BJP for and on behalf of Dr. Deshmukh
clearly amounted to corrupt practice under Section 123(2) and Section
123(3A) of the Representation Act.
C
Dr. Deshmukh contested the election petition by filing a written
statement (Ex.7) inter alia denying the allegations made in the election
petition about the corrupt practice alleged by the election petitioner. Dr.
Deshmukh contended in the written statement that he was a candidate of D
Shiv Sena at the last Assembly Elections and that Shri Sonwane was his
election agent, but he denied that Shri Chandrakant Bagve or Vinayak
Partharkar were incharge of his election campaign. He also stated that the
details of the speeches and the posters had not been furnished by the
petitioner and for want of specific particulars of such allegations, the
petition should be dismissed. Dr. Deshmukh contended that Shiv Sena was E
a recognised political party having its own constitution which was in
keeping with principle of socialism, secularism and democracy. It was
stated that the views expressed in 'Sarona' newspaper by Shri Thackrey
were his-personal views. Dr. Deshmukh also stated that the views expressed
in 'Sarona' could not be attributed to Dr. Deshmukh as the views sub- ..,.F
scribed by him. Dr. Deshmukh also contended that the elections of other
candidates of Shiv Sena and BJP party had not been challenged on the
ground of election campaign on the score of religion. Such fact according
to Dr. Deshmukh, would amply demonstrate that the campaign by Shiv
Sena and BJP party had not been based on religion. He also denied that
the propaganda machinery of the Shiv Sena was engaged on his behalf with G
his consent or with the consent of his election agent. Dr. Deshmukh
contended that only the statements which were contained in election
manifesto of the party should be looked into and the ideology of Shiv Sena
or that of Shri Thackrey was not relevant for deciding the election
petitioner Dr. Deshmukh admitted that he was present at the meeting held H
158
SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A
at Nanded on February 4, 1990 called by Shiv Sena and he had accorded
welcome to Shri Thackrey and touched his feet but such fact would not
mean that whatever Shri Thackrey would state as his personal view would
be the election campaign of Dr. Deshmukh. Dr. Deshmukh did not admit
the headlines appearing in 'Godatir Samachar' on February 5, 1990 and he
B
had denied the other parts of speeches of Shri Thackrey as published in
the newspaper and contended that Shri Thackrey did not treat the Muslims
as anti Hindus. Dr. Deshniukh pointed out that on the other hand, Shri
Antualay and Mohd. Azaharuddin had been accepted as true Indians. He
pointed out that Shri Thackrey had criticised those mohammondens who
were anti-Indians or anti- nationals. Dr. Deshmukh also contended that the
C cassettes of 'Avhan' and 'Awhan' did not contain any insinuation asking the
voters to vote on the basis of religion and no part of the speeches did
promote illwill or hatred between the two communities.
Coming to the meeting held at Narsi, Dr. Deshmukh stated that he
D was not present at the meeting and anything stated in such meeting was
not binding on the petitioner and his election agent. As regards audio and
video cassettes. Dr. Deshmukh stated that report of such speeches did not
reflect the true contents of the speeches and therefore the same should not
be looked into by the Court.
E
Coming to the alleged propaganda made by Dr. Deshmukh and his
election agent through posters, publication Etc., Dr. Deshmukh stated that
such posters and publicati<:>ns has not been displayed or published with the
consent of Dr. Deshmukh and there was no evidence to show that such
posters or publications were made at the instance of Dr. Deshmukh. With
F
reference to the Annexure A. Dr. Deshmukh stated that the although the
said annexure was issued in the name of Dr. Deshmukh but in fact the
same did not bear his signature and as such the same could not be treated
as issued by Dr. Deshmukh. He also contended that the car in which
offensive posters were stated to have been displayed, did not belong to his
G election agent and he was not responsible for ·anything displayed in such
car. Dr. Deshmukh stated that there were internal disputes of Congress I
party and the people did not vote for the Congress I party. It was also
stated that the election petitioner was the Chairman of the University
Centre at Nanded and he was prosecuted for various offences under
Sections 520, 506 and 467 of Indian Penal Code. The people also did not
H like the petitioner's seeking permission to start Engineering and Architec-
\
'
D.R. DESHMUKH v. N.K.N. KADAM [G.N. RAY, J.]
159
tural College at Nanded known as College of Engineering and ArchitecA
ture. It was contended that the voters believed that the election petitioner
was acting only for his personal gains and he was not concerned with the
welfare of the voters. It was for such reasons that they did not vote for the
election. petitioner. It may be stated here that the respondent Nos. 2 to 5
in the election petition were served with notice but they did not appear B
and contest the petition and the election petition was therefore decided ex
parte against them. Respondent No. 6 although appeared through an
Advocate, did not file any written statement.
·
On the pleadings of the parties, 13 issues were framed by the learned
Judge. The learned Judge, however, answered Issue No. 4:- "whether the C
petitioner proves that respondent No. 1 utilised the propaganda machinery
of Shiv Sena party", in the negative. The learned Judge, however, answered
issue No. 6 and Issue No. 8 in the affirmative only to the extent indicated
in the judgment. The learned Judge also answered Issue No. 10 to the effect
"whether the petitioner proves that respondent No. 1, his election agent D
and other persons named in the petition with the consent of respondent
No. 1 and his election agent, carried out election campaign on the basis of
religion and also with a view to promote religious hatred between different
class of citizens and thus <:;ommitted corrupt practices under Section
123(2), (3), (3A) of the Representation People Act?", in the affirmative.
The learned Judge by the impugned judgment held that in view of such E
corrupt practice, the election of Dr. Deshmukh was liable to be set aside.
As aforesaid, the learned Judge also awarded a cost of Rs. 10,000 against
Dr. Deshmukh and in favour of_ the election petitioner.
Shri Ramachandran, learned Advocate appearing for Dr. Deshmukh, F
has submitted that the expression "consent" in relation to a corrupt practice
as used in Section 123(3) and 123(3A) of the Representation Act has been
interpreted by this Court as not mere knowledge of or connivance at a
corrupt practice. For such contention, the learned counsel has referred to
decision of this Court in Saman.t N. Balkrishn.a Etc. v. George Fernandez G
and Others Etc., AIR (1969) SC 1201 at 1221-22. He also referred to
another decision of this Court in Haji C.H. Mohammed Koya v. T.KS.MA.
Muthukoya, (1979) 2 SCC 8. Mr. Ramachandran has contended that while
consent n;iay be proved not only by direct but also by circumstantial
evidence, the same standard is to be applied in assessing such circumstantial evidence as it is applied in Criminal Law, namely, that the circumstan- H
160
.SUPREME COURT REPORTS [1995) SUPP. 2S.C.R.
A
ces must point unerringly to only one conclusion and must not be consistent
with any other explanation or hypothesis. He has submitted that this Court
in Balakrishna Samant's case (supra) has indicated that although the trial
of an election petition is conducted in accordance with the Civil Procedure
Code, the corrupt practice must be proved in the same way as a criminal
B
c
charge is proved. Mr. Ramachandran has also submitted that in construing
the provisions of Section 123(3) and 123(3A) of the Representation Act,
the widest possible latitude ought to be given to the expression of opinion
in the context of democratic discourse so as not to infringe on the freedom
of speech and expression guaranteed by Article 19(1)(~) of the Constitution of India. He has submitted that there is no doubt that freedom of such
speech is subject to reasonable restrictions as envisaged by Article 19(2).
Mr. Ramachandran has submitted that the restriction ought to be strictly
construed. He has also submitted that the expression used in Section 123(3)
of the Representation Act is "on the ground of religion, race, caste,
community or language". Mr. Ramachandran has submitted that the said
D Section does not use the words with reference to religion, race, caste etc.
(emphasis added) but the expression used, namely, 'on the ground of
would require that an appeal be made for votes by speeches or propaganda
which tell a voter that he is.not true or loyal to his religion, caste etc. unless
E
F
he votes for a particular person. lf mere references to religion, community,
caste etc. are construed as falling within the scope of Section 123(3) of the
Representation Act, it would result in stifling debate on issues which have
contemporary relevance and do come up at the time of elections. In a
plural society such as ours, such issues pertain not only to religion and
secularism but also lc.nguage policy, reservation policies etc. Mr.
Ramachandran has further submitted that in construing a speech made or
a· poster published in the course of an election, the widest latitude ought
to be given. Referring to the decision of this Court in Ku/tar Singh v.
Mukhtiar Singh, AIR (1965) SC 141, Mr. Ramachandran has submitted that
this Court has held that the principles which have been applied in construing such a doc~ment as an election poster are well settled. The document
G must be read as a whole and its purport and effect determined in a fair;
objective and reasonable manner. In reading such documents, it would be
unrealistic to ignore the fact that when election meetings are held and
appeals are made by . candidates of opposing political parties, the atmosphere is usually surcharged with partisan feelings and emotions and the use
H
of hyperboles or exaggerated language or the adoption of metaphors and .
D.R. DESHMUKH v. N.KN. KADAM [G.N. RAY, J.]
161
the extravagence of expression in attacking one another are all parts of the A
game and so when the question abut the effect of speeches delivered or
pamphlets distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allowance must be made and the
impugned speeches or pamphlets must be construed in that light. Mr.
Ramachandran has further submitted that this Court has indicated in the B
said decision that there are several parties whose membership is either
confined to or predominantly held by members of particular communities
or religions and that an appeal made by such candidates of such parties
for votes may, if successful, lead to their election and in an indirect way
may be influenced by consideration of religion, race, caste, community or
language. So long as the law recognizes such parties for the purpose of C
election and parliamentary life, this situation cannot be avoided. Mr.
Ramachandran has submitted that the aforesaid view of this Court has
been reiterated in the case of Ebrahim Suleiman Salt v. M.C. Mohammed
and Another, [1980) 1 SCC 398 at 402-403. In Suleiman's decision, the
speech to the effect that "he made it very clear that the anti religious parties D
must not entertain the faint hope of securing the votes of any Muslim, in
whose head the Islam's blood was flowing", was not held to be offending
under the provisions relating to corrupt practice. Mr. Ramachandran has
also submitted that if a person is not a party to an election petition but is
liable to be guilty of a corrupt practice, a notice under Section 99 of the
Representation Act is to be issued to such person and the Court has no E
discretion in the matter. For the aforesaid contention, reference to the
decision of this Court in D.P. Mishra v. Kamal Narayan Shanna and
Another,· AIR (1970) SC 1477 at 1489 has been made by him.
Coming to the correctness of the factual finding of the High Court F
relating to the commission of corrupt practice, Mr. Ramachandran has
submitted that the meeting of February 4, 1990 at Nanded was addressed
by Shri Thackrey. Such a meeting was admittedly organised by Shiv Sena
party. The record discloses that it was in the said meeting on February 4,
1990 that the appellant was officially declared as the Shiv Sena candidate. G
The last date for withdrawal of nomination papers was upto February 7,
1990 and it was open to the party to revoke applicant's nomination as party
candidate upto that date. Mr. Ramachandran has submitted that in such a
situation, it would be wholly unrealistic to expect that the appellant would
·be in a position to repudiate or dissociate himself from particular portions
of the speech of the leader of Shiv Sena party even though he might not H
162
SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.
A
have agreed with all that was said in the course of such a long speech or
with the choice of words in the speech. Mr. Ramachandran has submitted
that the presence of the appellant at the meeting of February 4, 1990 should
not be construed as amounting to consent as interpreted by this Court in
Balaklishna Samant's case (supra) or decision in Mohammed Koya's case
B
c
(supra). Mr. Ramachandran has also submitted that in the written statement, the appellant also contended that he was also not present throughout
the meeting. Mr. Ramachandran has further submitted that even if it is
assumed that he consented to the speech delivered in the said meeting of
February 4, 1990, the speech read a a whole does not satisfy the requirements of Section 123(3) and 123(3A) of the Representation Act despite
the strong and rhetorical language used in the said speech. The said speech
does not appeal on the ground of religion nor does it promote feelings of
enmity or hatred on grounds of religion. He has also submitted that even
if the Court prima facie comes to the finding that the said speech of Shri
Thackrey amounts to corrupt practice within the meaning of Section 123(3)
D and 123(3A) of the Representation Act and the appellant had consented
to such speech of Shri Thackrey, it was an obligation of the Court to issue
a notice under Section 99 of the Representation Act to Shri Thackrey and
no finding of corrupt practice could have been rendered against the
appellant in the absence of a notice under Section 99 of the Representation
Act.
E
Coming to the speech delivered in the meeting held on February 9,
1990 at Nanded, Mr. Ramachandran has submitted that the said meeting
was "Shubharambh" ceremony when the appellant inaugurated his campaign two days after the last date for withdrawal of nominations. AdmitF
tedly, no permission for a regular meeting was granted by the police
authorities. According to the person who took a video recording of the
meeting, there was slogan shouting but no speeches were made and according to the appellant's witness there was no speech delivered in the said
meeting. Mr. Ramachandran has submitted that whatever had been spoken
at the said meeting were in reality long discussion with party men and
G sympathisers and it did not assume the formal character of the speech but
was part of the inauguration of the campaign for the election. The leaders
· of the Shiv Sena and also representatives of the BJP which was a partner
of the Shiv Sena in the election contest were present and the presence of
the appellant cannot amount to consent CJ.S interpreted by this Court in the
H decisions referred to hereinbefore. Mr. Ramachandran has also submitted
D.R. DESHMUKH v. N.K.N. KADAM [G.N. RAY, J.]
163
that even if it is assumed that the appellant has consented to the said A
statement attributed to the various speakers at the said inauguration of
election meeting, none of the so called offending portions set out in para
5.04 at pages 212-216 of Vol. I falls within the scope and ambit of Sections
123(3) and 123(3A) of the Representation Act. Mr.