# DR. RAMESH YESHWANT PRABOO v. SHRI PRABHAKER KASHINATH KUNTE AND ORS

- **Citation:** [1995] Supp. 6 S.C.R. 371
- **Court:** Supreme Court of India
- **Decided:** 1995-12-11
- **Bench:** J.S. Verma, N.P. Singh, K. Venkataswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-ramesh-yeshwant-praboo-v-shri-prabhaker-kashinath-kunte-and-ors-13599
- **Pages:** 50

## Headnote

B
Election Laws :
Representation of the people Act, 1951-Sections 116A, 100(1)(b),
123(3) & (3A),-Petition for setting aside the election on account of corrnpt C
practices-Use of religion for soliciting votes by successful candidate and his _
agent-Appeal to vote or refrain from voting prohibited.
'Hindutva' Meaning of-lndicates way of life of Indian people-Not to
be confined to describing people practicing Hindu religion.
Corrnpt practice-All references to 'Hindutva' or 'Hinduisim; in
speeches need not be corrnpt practice-Speech to preserve own language,
religion, culture etc. not forbidden by the Act:-The type of reference and
meaning sought to be conveyed in the speech to be considered before arriving
at the decision.
Positive appeal-Appeal made on ground of candidates' religion.
Negative Appeal-Appeal to refrain from voting on ground of other
candidates' religion.
D
E
Both positive and negative appeals prohibited under the Act-Inference F
that may lead to the conclusion of the existence of such appeals is sufficient-The manner in which common man understands the speech to be kept
view.
The election of the Appellant, who was returned successful from y.ile G
Parle constituency to the Maharashtra Assembly in 1987, was challenged
by the respondent under Section 116A of the R.P. Act, alleging corrupt
practice under Ss.123(3) & (3A), of the R.P. Act. It was pleaded that both
the Appellant as well as his agent Mr. Bal Thackery not only appealed for
votes on the basis of the candidate's own religion but also promoted or
tended to arouse ill feelings between the people of different communities H
371
372
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A and the election petitioner relied on certain speeches made during the
election meetings.
The High Court came to the finding that three public speeches of
Mr. Thackery in the election meeting of the Appellant were appeals to. vote
for t11e Appellant in the name of his religion, and were also in the nature
B of arousing communal feelings. Thus the High Court upheld the charge of
corrupt practice on the ground of S.100(1) (b) of the R.P. Act and set aside
the election of the Appellant and also named Mr. Thackery in accordance
with s.99 of the R.P. Act.
C
Before this court the plea taken by the Appellants was, inter-alia, that
s.123(3) & (3A) were constitutionally invalid and violative of Article
19(1)(a) of the Constitution, since the freedom of speech guaranteed in the
said Article is absolute, the words 'decency' and 'morality' refer to sexual
morality only, to get the protection of Article 19(2), the provisions of
s.123(3) & (3A) have to be read as reasonable restriction, only a direct
D appeal on the ground of the candidate's religion which also has a tendency
to affect public order will fall within the purview of Section 123(3) & (3A),
inter-alia because the object of introducing the term 'his' in the substituted
sub-Section (3) is only tu restrict the scope to cases of direct appeal on the
basis of the candidate's religion, a speech where religion is referred to but
E does not directly appeal to voters on the ground of religion is not hit by
s.123(3) or (3A), that the speeches to 'Hindutva', which is a reference to
Indian culture and not only to Hindu religion, the speeches were a
criticism of the Congress party's attitude which was to favour the
minorities against the Hindus.
F
On behalf of Mr. Thackery, it was submitted that there was non-compliance with the requirements of s.99 since he was not informed of the
precise charges against him nor he was supplied with the particulars. In
general it was also pleaded that the election petition was lacking in
material particulars and the particulars which were brought in at the stage
G of evidence were to be excluded, that the High Court has arrived at the
decision based on mere impressions and had not Limited its enquiry to
the legally admissible evidence.
On behalf of the Respondent it was pointed out that the question of
constitutional

## Text

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DR. RAMESH YESHWANT PRABOO
A
v.
SHRI PRABHAKER KASHINATH KUNTE AND ORS.
DECEMBER 11, 1995
[J.S. VERMA, N.P. SINGH AND K. VENKATASWAMI, JJ.)
B
Election Laws :
Representation of the people Act, 1951-Sections 116A, 100(1)(b),
123(3) & (3A),-Petition for setting aside the election on account of corrnpt C
practices-Use of religion for soliciting votes by successful candidate and his _
agent-Appeal to vote or refrain from voting prohibited.
'Hindutva' Meaning of-lndicates way of life of Indian people-Not to
be confined to describing people practicing Hindu religion.
Corrnpt practice-All references to 'Hindutva' or 'Hinduisim; in
speeches need not be corrnpt practice-Speech to preserve own language,
religion, culture etc. not forbidden by the Act:-The type of reference and
meaning sought to be conveyed in the speech to be considered before arriving
at the decision.
Positive appeal-Appeal made on ground of candidates' religion.
Negative Appeal-Appeal to refrain from voting on ground of other
candidates' religion.
D
E
Both positive and negative appeals prohibited under the Act-Inference F
that may lead to the conclusion of the existence of such appeals is sufficient-The manner in which common man understands the speech to be kept
view.
The election of the Appellant, who was returned successful from y.ile G
Parle constituency to the Maharashtra Assembly in 1987, was challenged
by the respondent under Section 116A of the R.P. Act, alleging corrupt
practice under Ss.123(3) & (3A), of the R.P. Act. It was pleaded that both
the Appellant as well as his agent Mr. Bal Thackery not only appealed for
votes on the basis of the candidate's own religion but also promoted or
tended to arouse ill feelings between the people of different communities H
371
372
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A and the election petitioner relied on certain speeches made during the
election meetings.
The High Court came to the finding that three public speeches of
Mr. Thackery in the election meeting of the Appellant were appeals to. vote
for t11e Appellant in the name of his religion, and were also in the nature
B of arousing communal feelings. Thus the High Court upheld the charge of
corrupt practice on the ground of S.100(1) (b) of the R.P. Act and set aside
the election of the Appellant and also named Mr. Thackery in accordance
with s.99 of the R.P. Act.
C
Before this court the plea taken by the Appellants was, inter-alia, that
s.123(3) & (3A) were constitutionally invalid and violative of Article
19(1)(a) of the Constitution, since the freedom of speech guaranteed in the
said Article is absolute, the words 'decency' and 'morality' refer to sexual
morality only, to get the protection of Article 19(2), the provisions of
s.123(3) & (3A) have to be read as reasonable restriction, only a direct
D appeal on the ground of the candidate's religion which also has a tendency
to affect public order will fall within the purview of Section 123(3) & (3A),
inter-alia because the object of introducing the term 'his' in the substituted
sub-Section (3) is only tu restrict the scope to cases of direct appeal on the
basis of the candidate's religion, a speech where religion is referred to but
E does not directly appeal to voters on the ground of religion is not hit by
s.123(3) or (3A), that the speeches to 'Hindutva', which is a reference to
Indian culture and not only to Hindu religion, the speeches were a
criticism of the Congress party's attitude which was to favour the
minorities against the Hindus.
F
On behalf of Mr. Thackery, it was submitted that there was non-compliance with the requirements of s.99 since he was not informed of the
precise charges against him nor he was supplied with the particulars. In
general it was also pleaded that the election petition was lacking in
material particulars and the particulars which were brought in at the stage
G of evidence were to be excluded, that the High Court has arrived at the
decision based on mere impressions and had not Limited its enquiry to
the legally admissible evidence.
On behalf of the Respondent it was pointed out that the question of
constitutional validity of s.123(3) & (3A) is already settled by Jamuna
H Prasad Mukhariya And Others v. Lachhi Ram And Others, [1955) 1 SCR
DR. RAMESH YESHWANT PRABOO v. P.K KUNTE
373
608. It was also pointed ont that freedom of speech does not inclnde the A
type of speeches given by Mr. Thackery at the election meetings, that both
the substance and the main thrust of the speeches are to be examined to
arrive at the conclusion whether there was an appeal in the name of
religion and the term 'Hindutva' used in an election speech refers to the
'Hindu' religion, that it was not necessary that the speech mnst be direct B
though it was conceded that the word 'his' has significance bnt should not
be held to restrict the meaning of the section. In fact one of the speeches
was an appeal to voters to vote for the candidate because he was a Hindu
and it also tended to promote enemity between the communities and
therefore corrupt practice.
Dismissing the appeals, this Court
HELD : 1. All the three speeches of Bal Thackery amount to corrupt
practice under sub-section (3), while the first speech is a corrupt practice
also under snb·section (3A) of S123 of the R.P. Act. Since the appeal made
c
to voters in these speeches was to vote for the Appellant on the ground of D
his religion as a Hindn and the appeal was made with the consent of the
candidate, he is guilty of these corrupt practices. For the same reason, Bal
Thackery also is guilty of these ~orrupt 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. There is no ambiguity in E
sub-section (3) and it clearly indicates the particular religion cin the basis
of which an appeal to vote or refrain from voting for any person is
prohibited nnder sub-section (3). [419-G-H]
2.1. There can be no doubt that the word 'His' nsed in sub-section
(3) must have significance and it cannot be ignored or equated with the F
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 reading of sub~section (3) and this is the only G
manner in which the word 'His' used therein can be constructed. [387-F-G]
2.2. When the appeal is to vote on the ground of 'his' religion for the
furtherence of the prospects of the election of the candidate, that appeal is
made on the basis of the religion of that candidate for whom the votes are
solicited. On the other hand when the appeal is to refrain from voting for H
374
SUPREME COURT REPORTS [1995] SUPP.6 S.C.R.
A any person on the gronnd of 'his' religion for prejndicially affecting the
election of any candidate, that appeal is based on the religion of the candidate whose election is sought to be prejudicially affected. [387-H, 388-A]
23. 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
B 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 is a negative appeal. [389-B-C]
C
2.4. The substance of the speech and the manner in which it is meant
to be understood by the audience determines the nature, and not the
camouflage by the artistic use of the language. For understanding th•
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 the speech. The
D speech has also not 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 are ordinarilly addressed to audience comprised of common men and therefore, the
manner in which it wonld be understood by such an audience has to be kept
E in view. [388-F-GJ
3. 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 the public
order is unnecessary, on account of which it is not implicit in the provision.
F This is the meaning and the correct construction of sub-section (3) of Sl23.
[389-DJ
4.1. 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
G (3) of section 123. [392-A]
Parliamentary debates, referred to.
4.2. A speech with a secular stance alleging discrimination of any
particular religion and promising removal of the imbalance cannot be
H treated as an appeal on the ground religion as its thrust is for promoting
DR. RAMESH YESHWANTPRABOO v. P.K KUNTE
375
secularism. Jn other words, mention of religion as such in an election A
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.
[392-B-C]
4.3. An election speech made in conformity with the fundamental B
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. It is obvious that a speech referring to religion during election
campaign with a secular stance in conformity with the fundamental right C
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. [393-B-C]
4.4. When it is said that politics and religion do not mix, it merely D.
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. It E
obviously does not mean that even such permissible political speeches are
forbidden. This the meaning and true scope of sub-section (3) of section
123 of the Act. [392-D-393-D)
Dr. M. Ismail Faruqui and Others Etc, Etc. v. Union of India and
Others etc., [1994] 6 SCC 360 (Ayodhya case), referred to.
F
5. Jn sub-section (3A), the element of prejudicial effect on public
order is implicit. This is the logical inference to draw on proof of the
constituent parts of sub-section (3A). Whether the act complained of falls
within the net of sub-section (3A) is a question of fact in each case to be G
decided on the basis of the evidence led to prove the alleged act. [397-H]
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors.,
[1995] Suppl. SCR 281, relied on.
6.1. The heads specified in clause (2) of Article 19 are several and H
376
SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.
A they are intended to cover the entire area within which the absolute
freedom to say anything which the speaker may like 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 or used in clause (2) of Article 19 indicates a wide
B 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. 1\vo of the
heads mentioned are decency and morality. Thus any law which imposes
reasonable restrictions on the exercise of this right in the interests of
decency and morality is also saved by clause (2) of Article 19. Jn view of
C the expression 'in the interest or and the context of election campaign for
a free and fair poll, the right to contest the election being statutory and
subject to the provision of the statute, the words 'decency' and 'morality'
do not require a narrow or pedantic meaning to be given to these words.
The ordinary dictionary meaning of 'decency' indicates that the action
D must be in conformity with the current standards of behaviour or
propriety, etc. (398-F-H, 399-A-C]
6.2. 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
E candidate for membership of the House. Seeking votes at an election on
the ground of the candidates' religion in a secular State, is against the
norms of decency and propriety of the society. The saving in clause (2) of
Article 19 permits the imposition of reasonable restrictions on the exercise
of the right conrerred by Article 19(1) (a) by making any law in the interests
F of decency and morality, and sub-section 3 of Section 123 of the R.P. Act
has the protection of clause (2) of Article 19 under the head 'decency'
therein. This conclusion is reached even if it is assumed that the provision
is not saveci 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
G 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 in any manner, snb-section(3) of section 123 cannot
H be held to be unconstitutional. (399-C, F-H, 400-A-B]
-
DR. RAMESH YESHWANTPRABOO v. P.K KUNTE
377
Jamuna Prasad Mukhariya and Others v. Lachhi Ram and Others., A
[1955) 1 SCR 608 and Knuller (Publishing, Printing and Promotions) Ltd.
and Others v. Director of Public Prosecutions., [1972) 2 ALL ER 898,
referred to.
7.1 Mere use of the word 'Hindutva' or 'Hinduism' or mention of any
other religion in an election speech does not bring it within the net of B
sub-section (3) and/or sub-section (3A) of section 123, unless the further
elements indicated are also present in that speech. It is also necessary to
see the meaning and purport of the speech and the manner in which it was
likely to be understood by the audience to which the speech was addressed.
[400-G]
C
7.2. Ordinarily, Hindutva is understood as a way of life or a state of
mind and it is not to be equated with, or understood as religious Hindu
fundamentalism. The word 'Hindutva' is used and understood as a
synonym of 'Indianisation' i.e., development of uniform culture by
obliterating the differences between all the cultures co-existing in the D
country. 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 person practicing
the Hindu religion as a faith. Whether a particular speech in which
reference is made to Hindutva and/or Hinduism falls within the prohibition under snb-section (3) or (3A) of section 123 is, therefore, a question E
of fact in each case. (407-G, 408-C, 411-A,H, 412-A)
Sastri Yagnapurushadji and Others v Muldas Bhudardas Vaishya and
Another, [1966) 3 SCR 242; Commr. of Wealth Tax. Madras & Ors. v. Late
R. Sridharan, by L. Rs. (1976) Supl. SCR 478; Bhagwan Koer v. J.C. Bose
& Ors., (1904) ILR 31 Cal. 11; Dr. M. Ismail Faruqui and Ors. Etc. Etc. v.
Union of India Etc., (1994) 6 SCC 360 (Ayodhya case); Ku/tar Singh v.
Mukhtiar Singh, [1964) 7 SCR 790 andlagdev Singh Sidhanti v. Pratap Singh
Dau/ta and Ors., [1964] 6 SCR 750.
'Gitarahasaya'- by B.G. Tilak, referred to.
7 3. Considering the terms 'Hinduism' or 'Hindutva' per seas depictF
G
ing hostility, enemity or intolerence towards other religious faiths or
professing communalism, proceeds from an improper appreciation and
perception of the true meaning of these expressions. Misuse of these expressillns to promote communalism cannot alter the true meaning of these of H
378
SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R.
A terms. The mischief resulting from the misuse of the terms ~y anyone in his
speech has to be checked and not its permissible use. (411-B-C]
8. The noticee Bal Thackery had the same opportunity which the
returned candidate Dr. Ramesh Yeshwant Prabhoo got as a respondent to
the petition. The notice was given the opportunity to cross-examine any
B witness who had already been examined by the High Court and the witnesses who were considered to have given evidence against him, were also
enumerated in the notice; and he was given an opportunity to call evidence
in his defence and to be heard. The allegation against the noticee was in
respect of the three speeches made by him, the particulars of which were
C given and the text of those speeches also was available to the noticee which
he did not even deny. On these facts, there is no ground to allege non-compliance of section 99 of the R.P. Act. [415-B, DJ
9. The appeal made to the voters by Bal Thackery in his aforesaid
speeches was a clear appeal to the Hindu voters to vote for the Appellant
D 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. The language used in the context, amount to an
attempt to promote feelings of enemity or hatred between the Hindus and
the Muslims ·on the ground of religion. The first speech therefore also
E constitutes the corrnpt practice under sub-section (3A). The third speech
also constitutes corrupt practice under sub-section (3). Also, the offending
speeches in the present case discarded the cherished values of our rich
cultural heritage and tended to erode the secular polity. (419-C, D, 420-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2836 of
F 1989 etc:
From the Judgment and Order dated 7.4.89 of the Bombay Higb
Court in E.P. No. 1 of 1988.
G
D.P. Gupta, Solicitor General, Venugopal Reddy, BA. Desai, Ashok
H. Desai,, Ram Jethrnalani, Rana Jois, AM. Khanwilkar, Yatender Sharma, Rajiv Malhotra, V.D. Joshi, Ms. V.D. Khanna, M.P. Vashi, Pallav
Shishodia, M.N. Shroff, Ms. Reema Bhandari, P. Parmeshwaran, R.P.
Srivastava and Navin Prakash for the Appearing parties.
H
The Judgment of the Court was delivered by
•
DR. RAMESH YESHW ANT PRABOO v. P.K. KUNTE [J.S. VERMA, J.] 379
J.S. VERMA, J. Both these appeals are under Section 116A of the A
RepreSentation of the People Act, 1951 (hereinafter referred to as "the
Act/R.P. Act") against the judgment dated ?the April, 1989 of the Bombay
High Court in Election Petition No. 1 of 1988 by which the election of Dr.
Ramesh Yeshwant Prabhoo, the returned candidate from 38, Vile Parle
Constituency to the Maharashtra State Legislative Assembly, held on 13th B
December, 1987, has been declared to be void on the ground under Section
lOO(l)(b) of the Act. The appellant has been found guilty of the corrupt
practices prescribed by sub-section (3) and (3A) of Section 123 of the Act
at the election, in that he and his agent Bal Thackeray 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 C
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 practice. Civil Appeal No. 2836 of 1989 is by the returned candidate Dr. Ramesh Yeshwant Prabhoo and Civil Appeal No. 2835 of 1989 D
is by Bal Thackeray against that judgment.
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 : E
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 F
be corrupt practices under sub-sections (3) and (3A) of Section 123 of the
Act. The relevant pleading relating to these corrupt practices is contained
in paras 6 and 8 of the election petition. Sub-paras (a) to (d) of para 6
relate to first speech, sub-para ( e) of para 6 relates to second speech and
sub-para (I) of para 6 relates to third speech. Para 8 of the election petition
then says that returned
candidate indulged in the corrupt practices G
provided by sub-sections (3) and (3A) of Section 123 of the act and,
therefore, his election is void
After the election petitioner closed his evidence, the returned candidate Dr. Prabhoo examined only himself in rebuttal. After close of the H
380
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A evidence of the purities 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 or any other
B witness in rebuttal. The decision of the High Court is based on this
material.
Dr. Prabhoo was not set up as candidate of the Shiv Sena which was
then not a recognised political party for purposes of the Legislative As·
sembly elections and, therefore, Dr. Prabhoo's candidature was shown as
C "Shiv Sena • Independent'. Bal Thackeray·is the top leader of Shiv Sena
and he participated in the election campaign of Dr. Prabhoo as the main
speaker in his capacity as the leader of Shiv Sena. The status of Bal
Thackeray as the top leader of Shiv Sena has never been disputed. The gist
of election petitioner's case which has been found proved by the High
D Court is that the three public speeches of Bal Thackeray in the election
campaign of Dr. Prabhoo were all in very intemperate language and
incendiary in nature which were appeals to the voters to vote for Dr.
Prabhoo because of his religion, i.e., he being a Hindu, and the speeches
also promoted or tended to promote enmity and hatred between different
classes of the citizens of India on the ground of religion. The High Court
E has held this charge of the alleged corrupt practice proved against the
returned candidate Dr. Prabhoo and Bal Thackeray. Accordingly, the
election of the returned candidate has been declared to be void on the
ground contained in Section lOO(l)(b) of the Act, and Bal Thackeray has
been named in accordance with Section 99 of the Act. Hence these appeals
F
by them.
G
H
The averments in para 6 of the election petition alleging the commission of corrupt practice within the meaning of Section 123 of the Act are
in sub-paras (a) to (f) which are as under :
"(a) The Petitioner states that respondent No. 1 during his
election campaign indulged in corrupt practices by appealing him·
self, or by his election agents, or by his supporters with his consent
to vote him and refrain from voting other candidates on the
grounds of religion. The whole tenor of election propagan<ia of
the respondent No. 1 was that he is a candidate of Hi .. Jus and
DR. RAMESH YESHWANT PRABOO v. P.K. KUNTE [J.S. VERMA, J.] 381
Hindus should vote him alone. The details of this appeal are given A
in the later part of this petition.
(b) The respondent No. 1, his election agents and his supporters with the consent of the candidate respondent No. 1. also
indulged in corrupt practice by promoting and by attempting to
promote feelings of enmity and hatred between different classes
of citizens of India on grounds of religion, community and language. The examples of this corrupt practice are also listed in the
. later part of this petition.
B
(c) The campaign for the election of respondent No. 1 was C
headed by Shri Bal•saheb Thackeray, the leader of the Shiv Sena,
who had put up respondent No. 1 in this election. Shri Thackeray
addressed several meetings and also issued press statements during
the course of the election in question. Out of these meeting Shri
Thackeray spoke on 29.11.1987 at a meeting held at Shiv Sena
Shaka No 84 at Vile Parle, which took place from 9 P.M. to 12 D
midnight. In this meeting Shri Balasaheb Thackeray, Suryakant
Mahadik Pramod Navalkar, Ramesh Mehta, Madhukar Sarpotdar
and the candidate respondent No. 1 Dr. Ramesh Prabhoo himself
were also present. Shri Thackeray uttered the following words
during this meeting. The words are quoted in Marathi and they E
are followed by the English translation.
Translation : "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."
Since the petitioner was all throughout in the constituency for his
election campaign, he came to know about the said meeting having
been held and attended by Shri Bal Thackeray. Subsequently, he
also came to know about the speeches made in the meeting from
F
his friends and active workers of the Party. The petitioner has
reliably learnt that the police reporters also attended the meeting G
and they have taken down the report ofthe speeches made. The
petitioner craves leave to call for the record of the speeches from
the Police Department and to prove the point by examining the ·
police reporters who have taken down the speeches. The petitioner
craves leave to rely upon the said police report in the custody of H
A
B
c
D
E
F
G
H
382
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
the Police. A report regarding the said meeting and the speeches
appeared in the newspaper "Mumbai Sakal" (A Marathi daily)
dated 1.12.1987 with the photographs under the title "Hindu DevDevtavareel Teeka Sahan Karnar Nahi Thackeray'' (We will not
tolerate the criticism of Hindu gods and goddesses - Thackeray).
From the said photograph it is clear that respondent No. 1 was
also present in the said meeting. Thus all the utterances regarding
the speeches made by Bal Thackeray to appeal to voters in the
name of Hindu religion are with the consent and connivance of
the first respondent. The same meeting was also reported in 'Sanj
Tarun Bharat' (an evening daily) dated 30.11.87 with the
photograph of Shri Thackeray, respondent No. 1 and others on the
dias. The said photograph further shows that a banner was put up
on the dias which reads as under :
"Garva Say Kaho (OM) Ham Hindu Hai"
The said meeting was also reported in 'Sandhyakal', another
Marathi daily, on 1.12.87. Hereto annexed and marked Exhibit 'A'
and 'Al' is a copy of the report appearing in the 'Mumbai Sakal'
with english translation, hereto annexed and marked Exhibit 'B'
and 'B-1' is the original report appearing in 'Sanj Tarun Bharat'
with english translation and hereto annexed and marked Exhibit
'C' and 'C-1' is the said report appearing in 'Sandhyakal' with
english translation.
( d) The petitioner says that a report regarding the said meeting
also appeared in the 'Urdu Times' , an Urdu daily published from
Bombay in its issue dated 1.12.87. The petitioner does not know
how to read and write Urdu. However, he got the said report
translated. In the said 'Urdu Times' the report appeared with the
title 'Shiv Sena ko Musalmano ke votonki zarurat nahin hai' (Shiv
Sena did not need the votes of Muslims). A true English translation
of the said news item is annexed hereto and marked Exhibit 'D'
and 'D-1' with a zerox copy of the report in Urdu.
( e) Again on 9 .12.87 there was another election meeting which
took place from 9 a.m. to about12 midnight at Khar-Danda, near
Shankar Temple. This meeting was addressed by Shri Bal Thackeray, respondent No. 1, Harishchandra Dattaji Salvi (a Shiv Sena
DR.RAMESHYESHWANTPRABOO v. P.K.KUNTE[J.S. VERMA,J.]383
leader) and Shambhoo Maharaj, a religious leader from Gujarat. A
In the said meeting Shri Bal Thackeray, while addressing the
audience stated as under :
Translation : "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 Bhujhal B
who is already there. Y 01' 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."
The petitioner says that the proceedings of the said meeting were
recorded by the police. Newspaper reports regarding the meeting
also appeared. The petitioner will crave leave to and rely upon the
records of the police and also the press report giving the version
of the said meeting appearing in various newspapers.
(t) The petitioner says that on 10.12.87 a meeting was held from
9 p.m. to about.12 midnight at Vile Parle (East) at Shahaji Raje
Marg. This was addressed by S/Shri Bal Thackeray, Shambhoo
Maharaj, Ramesh Mehta, Rishi Kapoor, Jitendra Madhukar Joshi
c
D
and Ramesh Prabhoo, respondent No. 1. In this meeting Shri E
Thackeray uttered the following words while addressing the meeting:
Translation : "We have come 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
F
votes more than your votes; we do not want 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 above utterances in these three meetings are the examples G
of promoting the feelings of enmity between different classes of
citizens of India. The sole purpose in doing so and making the
appeal was to canvas votes in favour of the first represent on the
ground of religion and make it appear to the voters that respondent
No. 1 was the only person who could respondent the Hindu H
A
B
c
384
SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R.
community. The effect of the said speeches was to promote the
feelings of enmity and hatred between Hindus and non-Hindus on
the ground of religion, race, caste, community etc. As such the
petitioner and most of the respondents from 1 to 13 are Hindus,
having full faith in the Hindu religion. The main ground of objection on the way of canvassing for votes by respondent No. 1 and
his supporters was to bring the element of religion into politics
endangering the very foundation of the Constitution of India, viz.
secularism. The petitioner honestly believes that it is one thing to
follow one's own religion according to his own conviction and
another thing to appeal to the voters to vote in the name of the
religion.
11
Reliance was placed by the election petitioner on certain news items
wherein the public speeches were published and also on certain reports
alleged to have been made by some police officers who reported the
D making of the speeches raising some controversy relating to sufficiency of
pleadings and use of material for proving the contents of the speeches in
excess of the exact words pleaded in the election petition. Details of this
controversy would be mentioned later while considering that point. However, it may be mentioned that the extent to which there is specific pleading
and the returned candidate himself admitted the contents of the public
E speeches can safely be considered subject to the objection raised of the
alleged legal infirmities including want of a valid notice under Section 99
of the Act to the noticee Bal Thackeray. More details of the evidence
would be mentioned at the appropriate stage.
F
Broadly stated, the contentions of Shri Ram Jethmalani, learned
counsel for the appellants in these appeals are : (1) Sub-sections (3) and
(3A) of Section 123 of the 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 protecG tion 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 mnst be understood in
H the light of the restricted scope of the provision indicated by the Union
•
DR. RAMESH YESHWANT PRABOO v. P.K. KUNTE [J.S. VERMA, J.] 385
Law Minister during the Parliamentary debates to explain the object of A
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 B
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 practizing discrimination against Hindus and giving C
undue favour to the minorities which is not an appeal for votes on the
ground of Hindu religion; (7) on behalf of the noticee Bal Thackeray, it
was further contended that there was no compliance of the requirements
of Section 99 of the Act, inasmuch as the notice contemplated by the
provision was not given and the noticee was never informed of the precise D
charge against him. It was submitted that the notice given was not in
conformity with the law and particulars required to be given by the court
were never given, the High Court having merely asked the petitioner to
indicate the particulars of the charge of the corrupt practice; and (8) 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 E
evidence and relied on to prove the charge of corrupt practice has to be
excluded from consideration. Learned counsel for the appellant also made
the grievance that the High Court had decided that election petition mainly
on the basis of the general impressions and Vague assertions made by the
election petitioner instead of confining the decision to the precise pleadF
ings and the legally admissible evidence examined in the light of the true
meaning and scope of sub-sections (3) and (3A) of Section 123 of the Act.
In reply, Shri Ashok Desai, learned counsel for the respondent
refuted these contentions. He submitted that the question of constitutional G
validity of the provisions is no longer res integra being concluded by the
decision of the Constitution Bench infamuna Prasad Mukhariya and Others
v. Lachlzi Ram and Others, [1955] 1 SCR 608. Alternatively, he contended
that the freedom of speech guaranteed in the Constitution does not extend
to giving speeches of the kind given by Bal Thackeray and at any rate, these
provisions impose reasonable restrictions on the freedom of speech which H
386
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A are saved by Article 19(2) of the Constitution. Shri Desai also submitted
that the substance and main thrust of the speech, not merely the form, has
to be seen in its context to determine if it amounts to an appeal for votes
on the ground of 'his' religion, and such appeal need not necessarily be
only direct. Learned counsel submitted that each one of the speeches in
B question was highly incendiary containing appeal to vote for Dr. Ramesh
Prabhoo because he is a Hindu; and it also tended to promote enmity and
hatred between Hindus and Muslims. According to him, each one of the
speech amounted to the corrupt practice both under sub-sections (3) and
(3A) of Section 123 of the Act.
C Meaning of sub-sections (3) and (3A) of Section 123 of the R.P. Act.
Sub-sections (3) and (3A) of Section 123 of the R.P. Act are as
under:
"123. Corrupt practices. - The following shall be deemed to be
D
corrupt practice for the purposes of this Act :
E
F
G
H
xxx
xxx
xxx
(3) The appeal by a candidate or his agent or by any other
person with the consent of a candidate or his election agent to vote
or refrain from voting for any person on the ground of his religion,
race, caste, community or language or the use of, or appeal to
religious symbols or the use of, or appeal to, national symbols, such
as the national flag or the national emblem, for the furtherance of
the prospects of the election of that candidate or for prejudicially
affecting the election of any candidate :
Provided that no symbol allotted under this Act to a candidate
shall be deemed to be a religious symbol or a national symbol for
the purpose of this clause.
(3A) The promotion of, or attempt to promote, feelings of
enmity or hatred between different classes of the citizens of India
on grounds of religion, race, caste, community, or language, by a
candidate or his agent or any other person with the consent of a
candidate or his election agent for the furtherance of the prospects
of the election of that candidate or for prejudicially affecting the
election of any candidate.
DR.RAMESHYESHWANTPRABOO v. P.K.KUNTE[J.S. VERMA,J.]387
xxx
xxx
xxx"
The submission of Shri Ram Jethmalani, learned counsel for the
appellants is that the appeal to vote or refrain from voting for any person
on the ground of 'his' religion, etc. for the furtherance of the prospects of
A
the election of that candidate or for prejudicially affecting the election of B
·any candidate, means a direct appeal to vote or refrain from voting on the
ground of 'his' religion, etc.; and the appeal must also be provocative in
nature to adversely affect public order. The further element of adverse
effect on public order, it is urged, is implicit in the provision to save it from
constitutional invalidity, which argument is considered separately. Shri
Jethmalani laid emphasis on the word 'his' which was inserted by Act 40 C.
of 1961 w.e.f. 20.9.1961 when the existing sub-section (3) was substituted
for the old sub-section (3). Shri Jethmalani contended that the object of
insertion of the word 'his' in the newly substituted sub-section (3) was to
restrict the meaning of the provision and confine it only to a direct appeal
based on 'his' religio)l; Learned counsel placed strong reliance on the D
statement of the Law Minister during the debates in the Parliament to
support this submission.