Holding

All three speeches constitute corrupt practice under Section 123(3) of the Representation of the People Act, 1951, with the first speech also violating Section 123(3A), and the statutory provisions are constitutionally valid.

Summary

The 1987 Vile Parle Assembly election of Dr. Ramesh Yeshwant Prabhoo was challenged on the ground that his agent, Bal Thackeray, made speeches appealing to voters on the basis of Hindu religion and inciting communal feelings. The High Court held the speeches to be corrupt practices under Sections 123(3) and 123(3A) of the Representation of the People Act, 1951, and set aside the election, also naming Thackeray under Section 99. On appeal, the Supreme Court examined the meaning of the word "his" in Section 123(3), the scope of "Hindutva" references, and the constitutional validity of the provisions vis‑à‑vis Article 19. The Court concluded that the speeches were indeed appeals to vote on the basis of the candidate's religion and, in the first speech, promoted enmity, thus falling within the prohibited categories, and held the statutory provisions to be a valid reasonable restriction. It also found that the notice under Section 99 complied with statutory requirements. Consequently, both appeals were dismissed and the election remained void.

Issues considered

The whether the three speeches of Bal Thackeray amount to corrupt practice under Section 123(3) and/or Section 123(3A) of the Representation of the People Act, 1951.
The interpretation of the word "his" in Section 123(3) – whether it limits the prohibition to appeals based on the candidate's own religion.
The constitutional validity of Sections 123(3) and 123(3A) in light of Article 19(1)(a) and the reasonable‑restriction test under Article 19(2).
The compliance with the procedural requirements of Section 99 of the Representation of the People Act in naming the agent.
The effect of references to "Hindutva" or "Hinduism" in election speeches on the applicability of the prohibitions.

Legislation cited

Constitution of Indias. Article 19(1)(a), s. Article 19(2), s. Article 25, s. Article 26, s. Article 27, s. Article 28, s. Article 30
Indian Penal Code, 1860s. 153-A
Representation of the People Act, 1951s. 100(1)(b), s. 116A, s. 123(3), s. 123(3A), s. 98, s. 99

Subjects

election lawcorrupt practicereligious appealRepresentation of the People ActSection 123Section 99freedom of speechArticle 19secularismHindutvacommunalism

Judgment

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.
D
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.
E
Positive appeal-Appeal made on ground of candidates' religion.

Negative Appeal-Appeal to refrain from voting on ground of other
candidates' religion.

Both positive and negative appeals prohibited under the Act-Inference F
that may lead to the conclusion of the existence of such appeals is suffi-
cient-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-com-
pliance 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.
c
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
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 can-
didate 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 ordinaril-
ly 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-sec-
tion (3) of section 123, unless it falls within the narrow net of the prohibi-
tion. 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 expres-
sion '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 be-
haviour 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 prohibi-
tion 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.
F
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. G
73. Considering the terms 'Hinduism' or 'Hindutva' per seas depict-
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 expres-
sillns 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 wit-
nesses 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-com-
pliance 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 Shar-
ma, 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 YESHWANT 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 can-
didate 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 can-
didate 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.

The averments in para 6 of the election petition alleging the commis-
sion of corrupt practice within the meaning of Section 123 of the Act are
in sub-paras (a) to (f) which are as under :

G "(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
H 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 sup-
porters 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 B
of citizens of India on grounds of religion, community and lan-
guage. The examples of this corrupt practice are also listed in the
. later part of this petition.

(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."
F
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
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
382 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A 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 Dev-
Devtavareel 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
B 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
c 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"

D 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
E
'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
F 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'
G 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 Thack-
H eray, 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. Y01' 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."
c
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.
D
(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
and Ramesh Prabhoo, respondent No. 1. In this meeting Shri E
Thackeray uttered the following words while addressing the meet-
ing:

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
384 SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R.

A 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 objec-
tion on the way of canvassing for votes by respondent No. 1 and
B 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
c 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. How-
ever, 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 protec-
G 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 plead- F
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 :

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
E 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 :
F
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
G 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
H election of any candidate.
DR.RAMESHYESHWANTPRABOO v. P.K.KUNTE[J.S. VERMA,J.]387

xxx xxx xxx" A

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
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. In reply, Shri Ashok Desai, learned counsel for
the respond_ent contended that the word 'his' no doubt ha~ significance, but
its use does not confine the meaning of sub- section (3) only to a direct
appeal on the ground of 'his' religion, etc. and extends to an appeal of
which the main thrust in the context is no the religion of the candidate. E
Shri Desai submitted that an unduly restricted meaning cannot be given to
sub-section (3) since the object of the provision is to prohibit appeal for
votes during the election on the ground of religion of the candidate.

There can be no doubt that the word 'his' used in sub-section (3) F
must have significance and it cannot be ignored or equated with the word
'any' to bring within the net of sub-section (3) ,any appeal in which there
is any reference to religion. The religion forming the basis of the appeal to
vote or refrain from voting for any person, must be of that candidate for
whom the appeal to vote or refrain from voting is made. This is clear from G
the plain language of sub-section (3) and this is the only manner in which
the word 'his' used therein can be construed. The expression 'the appeal
...... to vote or refrain from voting for any person on the ground of his
religion, ...... for the furtherance of the prospects of the election of that
candidate or for prejudicially affecting the election of any candidate" lead
clearly to this conclusion. When the appeal is to vote on the ground of 'his' H
388 SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R.

A religion for the furtherance of the prospects of the election of that can-
didate, that appeal is made on the basis of the religion of the candidate for
whom votes are solicited. On the other hand when the appeal is to refrain
from voting for any person on the ground of 'his' religion for prejudicially
affecting the election of any candidate, that appeal is based on the religion
of the candidate whose election is sought to be prejudicially affected. It is
B thus clear that for soliciting votes for a candidate, the appeal prohibited is
that which is made on the ground of religion of the candidate for whom
the votes are sought; and when the appeal is to refrain from voting for any
candidate, the prohibition is against an appeal on the ground of the religion
of that other candidate. The first is a positive appeal and the second a
C negative appeal. There is no ambiguity in sub-section (3) and it clearly
indicates the particular religion on the basis of which an appeal to vote or
refrain from voting for any person is prohibited under sub- section (3).

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

H We are unable to accept the submission of shri. Jethmalani that a
DR. RAMESH YESHWANTPRABOO v. P.K. KUNTE [J.S. VERMA,J.]389

further element of prejudicial effect on public order, is implicit in sub-sec- A
lion (3). We do not find anything in the language of the provision to read
this further element into it. Sub-section (3) in substance forbids appeal for
votes for any candidate on the ground of 'his' religion and appeal to refrain
from voting for any other candidate on the ground of the religion of that
other candidate. Obviously the purpose of enacting the provision is to B
ensure that no candidate at an election gets votes only because of his
religion and no candidate is denied any votes on the ground of his religion.
This is in keeping with the secular character of the Indian polity and
rejection of the scheme of separate electorates based on religion in our
constitutional scheme. An appeal of the kind forbidden by sub-section (3)
based on the religion of a candidate, need not necessarily be prejudicial to C
public order and, therefore, the further element of likelihood of prejudice
to public order is unnecessary, on account of which it is not implicit in the
provision. This, according to us, is the meaning· and the correct construc-
tion of sub-section (3). The question of constitutional validicy of the
provision on this meaning is. considered later.
D
Reference may now made to the Parliamentary debates in which the
reason ascribed by the Law Minister Shri A.K. Sen for adding the word
'his' in sub-section (3) and its purpose was stated, thus -

"Shri A.K. Sen : I added the word 'his' in the Select Committee E
in order to make quite clear as to what was the mischief which was
sought to be prevented under this provision."

xxx xxx xxx

"Shri A.K. Sen : The apprehension was expressed if one's right was p
going to be curbed by this section. If such a right was going to be
curbed by the section, I would have been against such an amend-
ment, because after all, it is the right of a person to propagate his
own language, his own paiticular culture and va1ious other matters.
But that does not mean villifying another language or creating enmity
between communities. 11 G
xxx xxx xxx

"Shri A.K. Sen : ....... .

I am pained to hear Shri Hynniewta giving expression to an H
390 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A apprehension, which to me seems entirely baseless. That apprehen-
sion is to the effect that clause 23 will deprive him of his right to
propagate his language or preserve his language, which cannot be
taken away from him as he himself has quoted the relevant article
of the Constitution. If that right is taken away by the Bill, it will be
stmck down as contravening article 19 and the section will not be
B given effect to by any court. Fortunately, this country is still governed
by the rule of law and the courts of law have the last say in these
1
matters. '

xxx xxx xxx
c "Shri A.K Sen : That is a different matter. With due respect to
the hon. member, he has not really appreciated the rationale of
the Supreme Court's decision. With regard to election matters,
Parliament is free to enact such legislation as it thinks best and
Chapter III doer. not come in. That is the decision of the Supreme
D Court. But in the guise of framing an electoral law, no fundamental
right of the citizen can be taken away. That is what I am saying. 17ie
right to preserve one's language cannot be taken away by an election
law. That is as clear as daylight."

xxx xxx xxx
E
"Shri A.K Sen : You cannot make it an election issue say, 'Do
not vote for him. He is a Bengali' or 'Do not vote for him. He is
a Khasi'. I made it unequivocally clear that it is the purpose and
design of this House and of the country to ensure that. No man
shall appeal only because he speaks a particular language and should
F get voted for that reason; or no man shall appeal against a particular
person to the electorate solely because that opponent of his speaks
a particular language."

xxx xxx xxx
G "Shri A.K Sen : They are entitled to do so. The Constitution
gives them the right to do so. But we are on a very 1u11Tow pain~
whether we shall extend the right to a person, to a voter, to say: vote
for me because I speak Hindi, I Speak Gharwali, or I speak Nepali
or I speak Khasi; or in the alternative, do not vote for my opponent
H because he is a man who speaks this particular language, his own
DR. RAMESH YESHWANT PRABOO v. P.K KUNTE (J.S. VERMA, J.] 391

language. It is Oil that sole l!ll!TOW point that prohibitio11 is sought to A
be made.

But we are 11ot here on the aesthetics of lallgztage of the
philosophy of lallguage; llOr are we here to debate the fulldamelltal
1ights of a citizen to preserve his own language and culture. F01twiate-
ly, that is guaranteed to eve1y man and womall ill this coullt1y as it B
not elsewhere . ........1
'

xxx xxx xxx

"Sh1i A.K Sen ....... .
c
But the problem is, are we going to allow a man to go to the
electorate and ask for votes because he happens to speak a pa1ticular
language or ask the electorate to refrain from voting for a pa1ticular
persoll merely on the ground of his speaking a particular language
or followillg a particular religion alld so on ? If not, we have to
support this. The preservation of the minority's rights and so on is D
a different and a wider question."

xxx xxx xxx

"Shri A.K. Sell : ............................ But, if you say that Bmgali
language ill this area is beillg suppressed or the schools 01~ being E
closed, as Shri Hynniewta was saying, because.they bore a particular
name, then, you are speaking not only to figh( in an election but you
are also really seeking to protect your fundamental 1ights, to preserve
your own language and culture. That is a different matter.

But, if you say. 'I am a Bengali, you are all Bengalis, vote for
F
me: or 'I 0111 an Assaniese and so vote for me because you are
Assamese speaking men', l thillk, the entire House will deplore that
as a hopeless Jann of election propaganda. And, no progressive
party will run an election on that line. Similarly, on the ground of
religion. In the olden days, what speeches we used to hear ill Muslim G
League gathe1illgs! They were purely appeals on the ground of
religion. So, the issue is too narrow and not a wide· issue in which
the life and death of minorities are involved as Shri Hynniewta
sought to make out. It is not at all in question ........... "

(emphasis supplied) H
392 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

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

B It cannot be doubted that a speech with a secular stance alleging
discrimination against any particular religion and promising removal of the
imbalance cannot be treated as an appeal on the ground of religion as its
thrust is for promoting secularism. Instances given in the speech of dis-
crimination against any religion causing the imbalance in the professed goal
of secularism, the allegation being against any individual or any political
C party, cannot be called an appeal on the ground of religion forbidden by
sub-section (3). In other words, mention of religion as such in an election
speech is not forbidden by sub- section (3) so long as it does not amount
to an appeal to vote for a candidate on the ground of his religion or to
refrain from voting for any other candidate on the ground of his religion.
D When it is said that politics and religion do not mix, it merely means that
the religion of a candidate cannot be used for gaining political mileage
seeking votee 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 not religion and the State practises
E the policy of neutrality in the matter or religion.

In Dr. M. Ismail Fantqui and Oflters etc. etc. v. Union of India and
Others etc., [1994] 6 SCC 360 (Ayodhya case), the Constitution Bench,
after a detailed discussion, summarised the true concept of secularism
p under the Indian Constitution as under :

"It is clear from the constitutional scheme that it guarantees
equality in the matter of religion to all individuals and groups
irrespective of their faith emphasising that there is no religion of
the State itself. The Preamble of the Constitution read in particular
G with Articles 25 to 28 emphasises this aspect and indicates that it
is in this manner the concept of secularism embodied in the
constitutional scheme as a creed adopted by the Indian people has
to be understood while examining the constitutional validity of any
legislation on the touchstone of the Constitution. The concept of
H secularism is one facet of the right to equality woven as the central
DR. RAMESH YESHWANT PRABOO v. P.K KUNTE [J.S. VERMA,J.] 393

golden thread in the fabric depicting the pattern of the scheme in A
our Constitution."

(at page 403)

It cannot be doubted that an election speech made in conformity with
the fundamental right to freedom of religion guarantee under Articles 25 B
to 30 of the Constitution, cannot be treated as anti- secular to be prohibited
by sub-section (3) of section 123, unless it falls within the narrow net of
the prohibition indicated earlier. It is obvious that a speech referring to
religion during election .campaign with a secular stance in conformity with
the fundamental right to freedom of religion can be made without being C
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 becanse of his religion. When it is said that politics
and religion do not mix, it obviously not mean that even such permissible
political speeches are forbidden. This is the meaning and true scope of
sub-section (3) of Section 123 of the Act. D
We would now consider the meaning of sub-section (3A) of Section
123. This sub-section also was inserted along with the substituted sub-sec-
tion (3) by Act 40 of 1961 w.e.f. 20.9.1961. The meaning of this sub-section
is not much in controversy. Sub-section {3A) is similar to section 153-A of E
the Indian Penal Code. In sub-section (3A), the expression used is "the
promotion of, or attempt to promote, feelings of enmity or hatred" as
against the expression "Whoever ......... promotes or attempts to promote
......... disharmony or feelings of enmity, hatred or ill-will ....... " in Section
153-A, I.P.C. The expression 'feelings of enmity or hatred' is common in
both the provisions but the additional words in Section 153-A, I.P.C. are F·
'disharmony ...... or ill-will'. The difference in the plain language of the two
provisions indicates that mere promotion of disharmony or ill-will between
different groups of people is an offence under Section 153-A, I.P.C. while
under sub-section (3A) of Section 123 of the R.P. Act, it is only the
promotion of or attempt to promote feelings of enmity or hatred, which G
are stronger words, that is forbidden in the election campaign.

The provision is made with the object of curbing the tendency to
promote or attempt to promote communal, linguistic or any other factional
enmity or hatred to prevent the divisive tendencies. The provision in the
I.P.C. as well as in the R.P. Act for this purpose was made by amendment H
394 SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R.

A at the same time. The amendment in the R.P. Act followed amendments
made in the Indian Penal Code lo this effect in a bid to curb any tendency
to resort to divisive means to achieve success at the polls on the ground of
religion or narrow communal or linguistic affiliations. Any such attempt
during the election is viewed with disfavour under the law and is made a
B corrupt practice under sub-section (3A) of Section 123.

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

The decision in Ziyauddin Burhanuddin Bukhaii v. Brijmo/lan Ram-
dass Mehra & Ors., [1995] Suppl. SCR 281, lends assurance to the correct-
ness of the construction made by us of these provisions. The returned
candidate Bukhari was the candidate of Muslim League while the defeated
E candidate Shauket Chagla was the Congress candidate at the election. Both
were Muslims. The returned candidate Bukhari in his appeal to the voters
said that Chagla was not true to his religion while he himself was a true
Muslim and that Chagla was neither a good Hindu nor a true Muslim. The
clear implication of the appeal was that Chagla was not true to his religion
F whereas Bukhari was, and, therefore, the voters should prefer Bukhari. In
short, the appeal for votes was made on the ground that Bukhari was a
staunch believer of the muslim religion as against Chagla who did not. It
was this clear appeal based on the ground of the candidate's religion which
was held to constitute the corrupt practices defined by sub-sections (3) and
(3A) of Section 123 of the R.P. Act. For this purpose, the true ambit and
G scope of these provisions was considered and indicated as under : -

"We propose to indicate, at this stage, what mischief the
provisions were designed to suppress because that seems to m 10
be the most illuminating and certain way of correctly con<eruing
H these statutory provisions. We carmot do so without adverting to
DR. RAMESHYESHWANTPRABOO v. P.K.KUNTE[J.S.VERMA,J.]395

the historical, political, and Constitutional background of our A
democratic set up, such provisions are necessary in our opinion,
to sustain the spirit or climate in which the electoral machinery of
this set up could work.

Our Constitution-makers certainly intended to set up a Secular
Democratic Republic the binding spirit of which is summed up by B
the objectives set forth in the preamble to the Constitution. No
democratic political and social order, in which the conditions of
freedom and their progressive expansion for all make some regula-
tion of all activities imperative, could endure without an agreement
on the basic essentials which could unite and hold citizens together c
despite all the differences of religion, race, caste, community,
culture, creed and language. Our political history made it par-
ticularly necessary that these differences, which can generate
powerful emotions depriving people of their powers of rational
thought and action, should not be permitted to be exploited lest D
the imperati_ve conditions for the preservation of democratic
freedoms are disturbed.

It seems to us that Section 123, sub s.(2), (3) and (3A) were
enacted so as to elilninate, fron1 the electoral process, appeals to
those divisive factors which arouse iJTational passions that ntn E
counter to the basic tenets of our Constitution, and, indeed, of any
civilised political and social order. Due respect for the religious
beliefs and practices, race, creed, culture and language of other
citizens is one of the basic postulates of our democratic system.
Under the guise of protecting our own religions, culture or creed
you cannot embark on personal attacks on those of others or whip F
up low hard instincts and animosities or irrational fears between
group to secure electoral victories. The line has to be drawn by the
Cowts, between what is pennissib/e and what is prohibited, after
taking into account the facts and circumstances of each inteipreted
in the context in which the s.tatenlents or acts coniplained of were G
made.

xxx xxx xxx

rte have to detennine the effect of statentents proved to have been
made by a candidate, or, on his behalf and with his consent, during H
396 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A his election, upon the minds and feelings of the ordi11ary average
voters of this country in evC1y case of alleged comtpt practice of
undue influence by making statements. We will, therefore, proceed
to consider the particular facts of the case before us.

xxx xxx xxx
B
...... In other words, Bukhari, apart from making a direct attack on
the alleged religious beliefs and practices of the Chagla family,
clearly conveyed to the hearers that Chagla was an unfit person,
on the ground of his mixed religious faith and practices, to repre-
sent Muslims. Bukhati had also called upon muslims to unite against
c such a person if they wanted their religio11 to survive. The High Court
had ve1y 1ightly held that these statements contravened the provisions
of Section 123(3) of the Act.

xxx xxx xxx
D
We do not think that any useful purpose is served by citing
authorities, as the learned Counsel for the appellant tried to do,
to interpret the facts of the case before us by comparing them to
the very different facts of other cases. In all such cases, the line
has no doubt to be drawn with care so as not to equate possible
E impersonal attacks on religious, bigotry and intolerance with personal
ones actuated by bigotry and intolerance.

As already indicated by us, our democracy can only survive if those
who aspire to become people's representatives and leaders u11der-
F sta11d the spirit of secular democracy. That spirit was characterised
by Montesquieu long ago as one of "virtue". It implies, as the late
Pandit Jawharlal Nehru once said, 'self discipline'. For such a spirit
to prevail, candidates at elections have to try to persuade electors by
showing them the light of reason and not by inflaming their bli11d
and disruptive passions. Heresy bunting propaganda or professedly
G religious grounds directed against a candidate at an election may
be permitted in a theocratic state but not in a secular republic like
ours. It is evident that, if such propaganda was permitted here, it
would injure the interests of members of religious minority group~
more than those of others. It is forbidden in this country in ocder
H to preserve the spirit of equality, fraternity, and amity between rivals
DR. RAMESH YESHWANT PRABOO v. P.K. KUNTE [J.S. VERMA, J.] 397

even during electio11s. Indeed, such prohibitions are necessary i11 the A
interests of elemental)' public peace and order.

xxx xxx xxx

According to his own professions, the appellant wa11ted votes for
himself on the ground that he staunchly adhered to what he believed B
to be Muslim religion as contrasted with Chagla who did not. There
is no doubt whatsoever in our minds that the High Court had
rightly found the appellant guilty of the corrupt practices defined
by the provisions of Section 123(2), 123(3) and 123(3A) of the Act
by making the various speeches closely examined by us also."
c
(emphasis supplied)

The meaning of sub-sections (3) and (3A) of Section 123 was understood
and indicated in this decision, in the above manner.

Constitutional Validity of subsectio11 (3) and (3A) of Sectio11 123.
D

The next question now relates to the constitutional validity of these
provisions on the meaning ascribed to them.

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

The question now is of the constitutional validity of sub-section (3)
of Section 123. We have already rejected the argument that the element of
prejudicial effect on public order is implicit also in sub-section (3) as it is H
398 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A in sub-section (3A). According to Shri Ram Jethmalani, unless this element
also is read into sub-section (3), it is violative of Article 19(l)(a) inasmuch
as clause (2) of Article 19 does not save its validity under any of the other
heads specified therein.

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

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

The expression "in the interests of' used in clause (2) of Article 19
indicates a wide amplitude of the permi%ible law which can be enacted to
provide for reasonable restrictions on the exercise of this right under one
G of the heads specified therein, in conformity with the constitutional scheme.
Two of the heads mentioned are : decency or morality. Thus any law which
imposes reasonable restrictions on the exercise of this right in the interests
of decency or morality is also saved by clause (2) of Article 19. Shri
Jethmalani contended that the words 'decency or morality' relate to sexual
H morality alone. In view of the expression "in the interests of' and the context
DR. RAMESH YESHWANTPRABOO v. P.K KUNTE(J.S. VERMA, J.) 399

of election campaign for a free and fair poll, the right to contest the A
election being statutory and subject to the provisions of the statute, the
words 'decency or morality' do not require a narrow or pedantic meaning
to be given to these words. The dictionary meaning of 'decency' is correct
and tasteful standards of behaviour as generally accepted; conformity with
current standards of behaviour or propriety; avoidance of obscenity; and B
the requirements of correct behaviour" (The Oxford Encyclopedic English
Dictionary); "conformity to the prevailing standards of propriety, morality
modesty, etc.: and the quality of being decent" (collins English Dictionary).

Thus, the ordinary dictionary meaning of 'decency' indicates that the
action must be in conformity with the current standards of behaviour or C
propriety, etc. In a secular polity, the requirement of correct behaviour or
propriety is that an appeal for votes should not be made on the ground of
the candidate's religion which by itself is no index of the suitability of a
candidate for membership of the House. In Knu//er (Publishing, Printing
and Promotions) Ltd. and Others v. Director of Public Prosecutions, [1972] D
2 All ER 898, the meaning of 'indecency' was indicated as under :

"......... Indecency is not confined to sexual indecency; indeed it is
difficult to find any limit short of saying that it includes anything
which an ordinary decent man or woman would find to be shock-
ing, disgusting and revolting .... " E
(at page 905)

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

In our opinion, the saving in clause (2) of Article 19 permits the
imposition of reasonable restrictions on the exercise of the right conferred
by Article 19(1)(a) by making any law in the interests of decency or
morality; and sub-section (3) of Section 123 of the R.P. Act, as construed G
by us, has the protection of clause (2) of Article 19 under the head
'decency' therein. This conclusion is reached by us even if it is assumed
that the provision is not saved merely as a condition subject to which the
statutory right of contesting an election is available to the candidate. The
fact that the scheme of separate electorates was rejected in framing the
Constitution and secularism is the creed adopted in the constitutional H
400 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A scheme, are relevant considerations to treat this as a reasonable restriction
on the freedom of speech and expression, for maintaining the standard of
behaviour required in conformity with the decency and propriety of the
societal norms. Viewed at in any manner, sub-section (3) of Section 123
cannot be held to be unconstitutional. This view is also in accord with the
B nature of right to contest an election, as understood in Jamima Prasad
Mukhariya and Others v. Laclzhi Ram and Others, [1955[ 1 SCR 608. '

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

C Meaning of 'Hindutva' and 'Hinduism'
The next contention relates to the meaning of 'Hindutva' and
'Hinduism' and the effect of the use of these expressions in the election
speeches.

D We have already indicated the meaning of sub-section (3) of Section
123 of the R.P. Act and the limit of its operation. It may be said
straightaway that any speech wherein these expressions are used, irrespec-
tive of their meaning, cannot by itself fall within the ambit of sub-section
(3) of Section 123, unless the speech can be construed as an appeal to vote
for a candidate on the ground that he is a Hindu or to refrain from voting
E for a candidate on the ground of his religion, i.e., he not being a Hindu.
We have also indicated that mere reference to any religion in an election
speech does not bring it within the net of sub- section (3) and/or sub-sec-
tion (3A) of Section 123, since reference can be made to any religion in
the context of secularism or to criticise any political party for practising
F discrimination against any rdigious group or generally for preservation of
the Indian culture. In short, 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 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 purpose of the speech and the
G manner in which it was likely to be understood by the audience to which
the speech was addressed. These words are not to be construed in the
abstract, when used in an election speech.

Both sides referred copiously to the meaning of the words 'Hindutva'
H and with reference to several writings. Shri Jethmalani referred to them for
DR. RAMESH YESHWANT PRABOO v. P.K KUNTE [J.S. VERMA, J.] 401

the purpose of indicating the several meanings of these words and to A
emphasise that the word 'Hindutva' relates to Indian culture based on the
geographical division known as Hindustan, i.e., India. On the other hand,
Shri Ashok Desai emphasised that the term 'Hindutva' used in election
speeches is an emphasis on Hindu religion bearing no relation to the fact
that India is also know as Hindustan, and the term can relate to Indian B
culture.

The Constitution Bench in Sastri Yagnapurnshadji and Others v.
Muldas Blmdardas Vaishya and Another, [1966] 3 SCR 242 held thus :

"Who are Hindus and what are the broad features of Hindu C
• Religion, that must be the first part of our enquiry in dealing with
the present controversy between the parties. The word historical
and etymological genesis of the word "Hindu" has given rise to a
controversy amongst indologists; but the view generally accepted by
scholars appears to be that the word ''Hindu" is derived from the river D
Sindhu otherwise known as Indus which flows from the Punjab.
"That part of the great Aryan race", say Monier Williams, "which
immigrated from Central Asia, through the mountain passes into
India, settled first in the districts near the river Sindhu (now called
the Indus). The Persians pronounced this word Hindu and named
their Aryan brethren Hindus. The Greeks, who probably gained E
their first ideas of India from the Persians, dropped the hard
aspirate, and called the Hindus "Indoi" ("Hinduism" by Monier
Williams, p. 1).

The Encyclopedia of Religion and Ethics, Vol. VI, has F
described "Hinduism" as the title applied to that form of religion
which prevails among the vast majority of the present population
of the Indian Empire (p.686). As Dr. Radhakrishnan has observed;
"The Hindu civilizalion is so called, since its original founders or
earliest followers occupied the territory drained by the Sindhu (the G
Indus) river system corresponding to the North West Frontier
Province and the Punjab. This is recorded in the Rig Veda, the
oldest of the vedas, the Hindu scriptures which give their name to
this period Indian history. 17ie people on the Indian side of the
Sindhu were called Hindu by the Persian and the later western
invaders" ("17ie Hindu View of Life" by Dr. Radhakrishnan, p. 12). H
402 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A That is the genesis of the word "Hindu".

When we think of the Hindu religion, we find it difficult. If not
impossible, to define Hindu religion or even adequately describe it.
Unlike other religions in the world, the Hindu religion does llOf claim
any Olle prophet; it does' not worship any one God; it does not
B subscribe to ally one dogma; it does not believe in any one
philosophic concept; it does nol follow any one set of religious rites
or peiformances; in fact, it does not appear to satisfy the narrow
traditional features of any religion or creed. It may broadly be
described as a way of life and nothing more.
c ..... The tem1 'Hindu'; according to Dr. Radhakrishnall, had
originally a territorial and llot a credal significance. It implied
residence ill a well-defined geographical area. Aboriginal tribes,
savage and half-civilized people, the cultured Dravidians and the
Vedic Aryans were all Hindus as they were the sons of the same
D mother. The Hindu thinkers reckoned with the striking fact that
the men and women dwelling in India belonged to different com-
munities, worshipped different gods, and practised (lifferent rites
(Kurma Purana) (Ibid p. 12).

Monier Williams has observed that "it must be borne in mind
E that Hinduism is far more than a mere form of theism resting on
Brahmanism. It presents for our investigation a complex congeries
of creeds and doctrines which in its gradual accumulation may be
compared to the gathering together of the mighty volume of the
Ganges, swollen by a continual influx of tributary rivers and
F rivulets, spreading itself over an ever- increasing area of country
and finally resolving itself into an intricate Delta of tortuous steams
and jungly marshes ....... The Hindu religion is a reflection of the
composite character a/the Hindus, who are not one people but many.
Ii is based all the idea of universal receptivity. It has ever aimed at
accommodating itself to circumstances, and has carried on the
G process of adaptation through more than three thousand years. It
has first borne with and then, so to speak, swallowed, digested, and
assimilated something from all creeds". ("Religious Thought & Life
in India" by Monier Williams, p. 57).

H We have already indicated that the usual tests which can be
DR. RAMESH YESHWANT PRABOO v. P.K. KUNTE [J.S. VERMA, J.] 403

applied in relation to any recognised religion or religious creed in the A
world turn out to be inadequate in dealing with. the problem of Hindu
religion. Normally, any recognised religion or religious creed sub-
scribes to a body of set philosophic concepts and theological
beliefs. Does this test apply to the Hindu religion ? In answering
this question, we would base ourselves mainly on the exposition of B
the problem by Dr. Radhakrishnan in his work on Indian
philosophy. ("Indian Philosophy by Dr. Radhakrishnan, Vol. I. pp.
22-23). Unlike other countries, India can claim that philosophy in
ancient India was not an auxiliary to any other science or art, but
always held a prominent position of independerice ....... "In all the
fleeting centuries of history'', says Dr. Radhakrishnan, "in all the C
vicissitudes through which India has passed, a certain marked
identity is visible. It has held fast to certain psychological traits
which constitute its special heritage, and they will be the charac-
teristic marks of the Indian people so long as they are privileged
to have a separate existence". The history of Indian thought em- D
phatically brings out the fact that the development of Hindu religion
has always been inspired by an endless quest of the mind for tmth
based on the consciousness that tmth has many facets. Tmth is one,
but wise men describe it differently. (.. ) The Indian mind has,
consistently through the ages, been exercised over the problem of
the nature of godhead the problem that faces the spirit at the end E
of life, and the interrelation between the individual and the univer-
sal soul. "If we can abstract from the. variety of opinion", says Dr.
Radhakrishnan, "and observed the general spirit of Indian thought,
we shall find that it has a disposition to interpret life and nature
in the way of monistic idealism, though this tendency is so plastic, F
living and manifold that it takes many forms and expresses itself
in even mutually hostile teachings". ( ..)

....... Naturally enough, it was realised by Hindu religion from the
very beginning of its career that tmth was many-sided and different G
views contained different aspects of tmth which no one could fully
e:xpress. This knowledge inevitably bred a spirit of tolerance and
willingness to understand and ·appreciate the opponent's point of
view. That is how "the several views set forth in India in regard to
the vital philosophic concepts are considered to be the branches
of the self-same tree. The short cuts and blind alleys are somehow H
404 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A reconciled with the main road of advance to the truth."( .. ) When
we consider this broad sweep of the Hindu philosophic concepts, it
would be realised that under Hindu philosophy, there is no scope for
ex-communicating any notion or principle as heretical and rejecting
it as such.

B xxx xxx xxx

The develvpment of Hindu religion and philosophy shows that
from time to time saints and religious refonner> attempted to remove
from the Hindu thought and practices elements of conuption and
superstition and that led to the formation of different sects. Bud-
c dha started Buddhism; Mahavir founded Jainism; Basava became
the founder of Lingayat religion, Dnyaneshwar and Tukaram in-
itiated the Var-kari cult; Guru Nanak inspired Sikhism; Dayananda
founded Arya Samaj, and Chaitanya began Bhakti cult; and as a
result of the teachings a/Ramakrishna and Vivekananda, Hindu
D religion flowered into its most attractive, prowessive and dynamic
from. If we study the teachings of these saints and religious
rcforn1ers, we would notice an amount of divergence in their
respective \1ews; but underneath that divergence, there is a kind
of subtle indescribable unity which keeps them within the sweep
E of the broad and progressive Hindu religion.

xxx xxx xxx

....... It is somewhat remarkable that this brodd sweep uf Hindu
religion has been eloquently described by Toynbee. Says Toynbee:
F "When we pass from the plane of social practice to the plane of
intellectual outlook, Hinduism too comes out well by comparison
with the religions and ideologies of the South-West Asian group.
In contrast to these Hinduism has the same outlook as the pre-
Christian and pre-Muslim religions and philosophies of the
Western half of the old world. Like them, Hinduism takes it for
G granted that there is more than one valid approach to truth and to
salvation and that these different approaches are not only compatible
with each other, but are complementary" ("The Present-Day Experi-
ment in Western Civilisation" by Toynbee, pp: 48-49).

H The Co11Slitution-makers were fully conscious of this broad and
•
DR. RAMESHYESHWANT PRABOO v. P.K KUNTE [J.S. VERMA, J.] 405

comprehensive character of Hindu religi.on; and so, while guar_an- A
teeing the fundamental right to freedom of religion, Explanation
JI to Art. 25 has made it clear that in sub-clause (b) of clause (2),
the reference to Hindus shall be construed as including a reference
to persons professing the Sikh, J aina or Buddhist religion, and the
reference to Hindu religious institutions shall be construed accord-
B
ingly."

(emphasis supplied)
(from pages 259-266)

Jn a later Constitution Bench decision in Commr. of Wealth Tax, C
Madras & Ors. v. Late R Sridharan by L. Rs., (1976] Supp. SCR 478, the
meaning of the term 'Hinduism' as commonly understood is stated thus :

".......... It is a matter of common knowledge, that Hinduism
embraces within self so many diverse fonns of beliefs, faiths, practices
and worship that it is difficult to define the tenn 'Hindu' with D
precision.

The historical and etymological genesis of the word "Hindu"
has been succinctly explained by Gajendragadkar, C.J. in Shastri
Yagnapurushdasji & Ors. v. Muldas Bhundardas Vaishya & Anr., E
A.I.R. (1966) S.C. 1119.

In Unabridged Edition of Webster's Third New International
Dictionary of the English language, the tenn 'Hinduism' has been
defined as meaning "a complex body of socia~ cultural and religi.ous
belief< and practices evolved in and largely confined to the Indian F
subcontinent and marked by a caste system, an outlook tending to
view all fonns and theories as aspects of one eternal being and truth,
a belief in ahimsa, karma, dharma, sansara and moksha, and the
practice of the way of works, the way of knowledge, or the way of
devotion as the means of release from the bound of rebirths; the G
way of life and form of thought of a Hindu".

In Encyclopaedia Britannica (15th Edition), the tenn 'Hinduism'
has been defined as meaning "the civilization of Hindus (originally,
the inhabitants of the land of the Indus River). It properly denotes
the Indian civilization of approximately the last 2, 000 years, which H
406 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A gradually evolved from Vedism, the religion of the ancient Indo-
European who settled in India in the last centuries of the 2nd
millennium BC. Because it integrates a large variety of heterogeneous
elements, Hinduism constitutes a very complex but largely continuous
whole, and since it covers the whole of life, it has religious, social
economic, literary, and artistic aspects. As a religion, Hinduism is
B an utterly diverse conglomerate of doctrines, cults, and way of life
...... In principle, Hinduism incorporates all forms of belief and
worship without necessitating the selection or elimination of any. The
Hindu is inclined to revere the divine in every manifestation, whatever
it may be, and is doctrinally tolerant, leaving others - including both
c Hindus and non-Hindus - whatever creed and worship practices suit
them best. A Hindu may embrace a non-Hindu religion without
ceasing to be a Hindu, and since the Hindu is disposed to think
synthetically and to regard other forms of worship, strange gods,
and divergent doctrines as inadequate rather than wrong or objec-
tionable, he tends to believe that the highest divine powers comple-
D
ment each other for the well-being of the world and mankind. Few
religious ideas are considered to be finally irreconcilable. The core
of religion does not even depend on the existence or non-existence
of God or on whether there is one god or many.· Since religious
truth is said to transcend all verbal definition, it is not conceived in
E dogmatic terms. Hinduism is, then both a civilization and a con-
glomerate of religions, with neither a beginning, a fonnder, nor a
central authority, hierarchy, or organization. Every attempt at a
specific definition of Hinduism has proved unsatisfactory in one way
or another, the more so because the finest Indian scholars of Hin-
duism, including Hindus themselves, have emphasized different
F
aspects of the whole".

In his celebrated treatise "Gitarahasaya", B.G. Tilak bas given
the following broad description of the Hindu religion :

G
"Acceptance of the Vedas with reverence; recognition of the
fact that the means or ways of salvation or diverse; and
realisation of the truth that the number of gods to be wor-
shipped is large, that indeed is the distinguishing feature of
H Hindu religion".
,.,.
DR. RAMESH YESHWANT PRABOO v. P.K. KUNTE (J.S. VERMA, J.] 407

In Bhagwan Koer v. J.C. Bose & Ors., (1904) ILR 31 Cal. 11, it A
was held that Hindu religion is marvellously catholic and elastic. Its
theology is marked by eclecticism and tolerance and almost unlimited
freedom of private worship. ....... .

This being the scope and nature of the religion, it is not strange
that it holds within its fold men of divergent views and traditions B
which have very little in common except a vague faith in what may
be called the fundamentals of the Hindu religion."

(emphasis supplied)
{at pages 481-482) C
These Constitution Bench decisions, after a detailed discussion, in-
dicate that no precise meaning can be ascribed to the terms 'Hindu',
'Hindutva' and 'Hinduism'; and no meaning in the abstract can confine it
to -the narrow limits of religion alone, excluding the content of Indian
culture and heritage. It is also indicated that the term 'Hindutva' is related D
more to the way of life of the people in the sub-continent. It is difficult to
appreciate how in the face of these decisions the term 'Hindutva' or
'Hinduism' per se, in the abstract, can be assumed to mean and be equated
with narrow fundamentalist Hindu religious bigotry, or be construed to fall
within the prohibition in sub-sections (3) and/or (3A) of Section 123 of the E
R.P. Act.

Bharucha, J. in Dr. M. Ismail Faruqui and Ors. etc. etc. v: Union of
India & Ors. Etc., [1994] 6 SCC 360, (Ayodhya case), in the separate
opinion for himself and Ahmadi, J. (as he then was), observed as under:
F
"..... Hinduism is a· tolerant faith. It is that tolerance that has
enabled Islam, Christianity, Zoroastrianism, Judaism, Buddhism,
Jainism and Sikhism to fmd shelter and support upon this land ...... "

(at page 442)
G
Ordinarily, Hindutva is understood as a way of life of a state of mind
and it is not be equated with, or understood as religious Hindu fundamen-
talism. In "Indian Muslims - The Need For A Positive Outlook" by Maulana
Wahiduddin Khan, (1994), it is said:

The strategy worked out to solve the minorities problem was, H
408 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A although differently worded, that of Hindutva or Indianisation.
This strategy, briefly stated, aims at developing a uniform culture
by obliterating the differences between all of the cultures coexisting
in the country. This was felt to be the way to communal harmony
and national unity. It was thought that this would put an end once
and for all to the minorities problem. '
B
(at page 19)

The above opinion indicates that the word 'Hindutva' is used and under-
stood as a synonym of 'Indianisation', i.e., development of uniform culture
C by obliterating the differences between all the cultures co-existing in the
country.

In Ku/tar Singh v. Mukhtiar Singh, [1964] 7 SCR 790, the Constitution
Bench construed the meaning of sub-section (3) of Section 123 prior to its
amendment. The question there was whether a poster contained an appeal
D to voters to vote for the candidate on the ground of his religion; and the
meaning of the word 'Panth' in the poster was significant for the purpose.
It was held as under :

"It is true that a corrupt practice under s.123(3) can be com-
mitted by a candidate by appealing to the voters to vote for him
E on the ground of his religion even though his rival candidate may
belong to the same religion. If, for instance, a Sikh candidate were
to appeal to the voters to vote for him, because he was a Sikh and
add that his rival candidate, though a Sikh in name, was not true
to the religious tenets of Sikhism or was a heretic and as such,
F outside the pale of the Sikh religion, that would amount to a
corrupt practice under s. 123(3), and so we cannot uphold the
contention that s.123(3) is inapplicable because the appellant and
the respondent are Sikhs ........

The corrupt practice as prescribed by s. 123(3) undoubtedly
G constitutes a very healthy and salutary provision which is intended
to serve the cause of secular democracy in this country. In order
that the democratic process should thrive and succeed, it is of
utmost importance that our elections to Parliament and the dif-
ferent legislative bodies must be free from the unhealthy influence
H of appeals to religion, race, caste, community, or language. If these
'
DR.RAMESHYESHWANTPRABOO v. P.KKUNTE[J.S. VERMA,J.]409

considerations are allowed any sway in election campaigns, they A
would vitiate the secular atmosphere of democratic life, and so, s.
123(3) wisely provides a check on this undesirable development by
providing that an appeal to any of these factors made in fur-
therance of the candidature of any candidate as therein prescribed
would constitute a corrupt practice and would render the election B
of the said candidate void.

In considering the question as to whether the distribution of
the impugned poster by the appellant constitutes corrupt practice
under s. 123(3), there is one point which has to be borne in mind.
The appellant had been adopted as its candidate by the Akali Dal C
party. This Party is recognised as a political party by the Election
Commission notwithstanding the fact that all of its members are only
Sikhs. It is well-known that there are several parties in this country
which sub-scribe to different political and economic ideologies, but
the membership of them is either confined to, or predominantly held D
by, membei> of particular communities or religions. So long as law
does not prohibit the fonnation of such parties and in fact recognises
them for the purpose of election and parliamentary life, it would be
necessary to remember that <in appeal made by candidates of such
parties for votes may, if successful, lead to their election and in an
indirect way, may conceivably be influenced by considerations of E
religion, race, caste, community or language. This infinnity cannot
perhaps be avoided so long as parties are allowed to function and
are recognised, though their composition may be predominantly
based on membership of particular communities or religion. That is
why we think, in considering the question as to whether a particular F
appeal made by a candidate falls within the mischief of s. 123(3) ·
courts should not be astute to read into the words used in the appeal
anything more than can be attributed to them 011 its fair and
reasonable construction.

That takes us to the question of construing the impugned G
poster. The principles which have to be applied in construing such
a document are well-settled. The document must be read as a whole
and its purport and effect detem1ined in a fair, objective and
reasonable manner. In reading such docu1nents, it would be unrealis-
tic to ignore the fact that when election meetings are held and appeals H
410 SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A are made by candidates of opposing politidal parties, the atmosphere
is usually surcharged with partisan feelings and emotions and the use
of hyperboles or exaggerated language, or the adoption of metaphors,
and the extravagance of expression in attacking one another, are all
a part of the game, and so, when the question about the effect of
speeches delivered or pamphlets distributed at election meetings
B is argued in the cold atmosphere of a judicial chamber, some
allowance must be made and the impugned speeches or pamphlets
must be constrned in that light. In doing so, however, it would be
unreasonable to ignore the question as to what the effect of the
said speech or pamphlet would be on the mind of the ordinary
c voter who attends such meetings and reads the pamphlets or hears
the speeches. It is in the light of these well-established principles
that we must now turn to the impugned pamphlet."

(emphasis supplied)
(at pages 793-795)
D
The test applied in the decision was to construe the meaning of the
word 'Panth' not in the abstract but in the context of its use. The conclusion
reached was that the word 'Panth' used in the poster did not mean Sikh
religion and, therefore, the appeal to the voters was not to vote for the
E candidate because of his religion. Referring to an earlier decision infagdev
Singh Sidhanti v. Pratap Singh Dau/ta and Ors., (1964] 6 SCR 750, it was
reiterated as under :

".......... political issues which form the subject- matter of con-
troversies at election meetings may indirectly and incidentally
F introduce considerations of language or religion, but in deciding
the question as to whether corrupt practice has been committed
under s.123(3), care must be taken to consider the impugned
speech or appeal carefully and always in the light of the relevant
political controversy ............"
G (at page 799)

Thus, it cannot be doubted, particularly in view of the Constitution
Bench decisions of this Court that the words 'Hinduism' or 'Hindutva' '!:'e
not necessarily to be understood and construed narrowly, confined caly to
H the strict Hindu religious practices unrelated to the culture and ethos of
DR. RAMESH YESHWANTPRABOO v. P.KKUNTE [J.S. VERMA,J.]411

the people of India, depicting the way of life of the Indian people. Unless A
the context of a speech indicates a contrary meaning or use, in the abstract
these terms are indicative more of a way of life of the Indian people and
are not confined merely to describe persons practising the Hindu religion
as a faith.
B
Considering the terms 'Hinduism' or 'Hindutva' per-se as depicting
hostility, enmity or intolerance towards other religious faiths or professing
communalism, proceeds from an improper appreciation and perception of
the true meaning of these expressions emerging from the detailed discus-
sion in earlier authorities of this Court. Misuse of these expressions to
promote communalism cannot alter the true meaning of these terms. The C
mischief resulting from the misuse of the terms by anyone in his speech has
to be checked and not its permissible use. It is indeed very unfortunate, if
in spite of the Liberal and tolerant features of 'Hinduism' recognised in
judicial decision, these terms are misued by anyone during the elections to
gain any unfair political advantage. Fundamentalism of any colour or kind D
must be curbed with a heavy hand to preserve and promote the secular
creed of the nation. Any misuse of these terms must, therefore, be dealt
with strictly.

It is, therefore, a fallacy and an error of law to proceed on the
assumption that any reference to Hindutva or Hinduism in a speech makes E
it automatically a speech based on the Hindu religion as opposed to the
other religions or that the use of words 'Hindutva' or 'Hinduism' per-se
depict an attitude hostile to all persons practising any religion other than
the Hindu religion. It is the kind of use made of these words and the
meaning sought to be conveyed in the speech which has to be seen and F
unless such a construction leads to the conclusion that these words were
used to appeal for votes for a Hindu candidate on the ground that he is a
Hindu or not to vote for a candidate because he is not a Hindu, the mere
fact that these words are used in the speech would not bring it within the
prohibition of sub-section (3) or (3A) of Section 123. It may well be, that G
these words are used in a speech to promote secularism or to emphasise
the way of life of the Indian people and the Indian culture or ethos, or to
criticise the policy of any political party as discriminatory or intolerant. The
parliamentary debates, including the clarifications made by the Law Mini-
ster quoted earlier, also bring out this difference between the prohibited
and permissible speech in this context. Whether a particular speech in H
412 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A which reference is made to Hindutva and/or Hinduism falls within the
prohibition under sub-section (3) or (3A) of Section 123 is, therefore, a
question of fact in each case.

This is the correct premise in our view on which all such matters are
to be examined. The fallacy is in the assumption that a speech in which
B reference is made to Hindutva or Hinduism must be a speech on the
ground of Hindu religion so that if the candidate for whom the speech is
made happens to be a Hindu, it must necessarily amount to a corrupt
practice under sub-section (3) and/or sub- section (3A) of Section 123 of
the R.P. Act. As indicated, there is no such presumption permissible in law
C contrary to the several Constitution Bench decisions referred herein.

Non-compliance of Section 99 of the R.P. Act. •

The contention that the notice given to Bal Thackeray under Section
D 99 of the R.P. Act was not in conformity with that provision and that there
is non-compliance of the requirements of Section 99, has no merit. The
notice was given after the entire evidence had been recorded and the
learned trial judge formed the prima facie opinion that the corrupt prac-
tices alleged to have been committed under sub-sections (3) and (3A) of
Section 123 appeared to have been proved and Bal Thackeray was likely
E to be named along with the returned candidate to be guilty of those corrupt
practices. The notice given was accompanied by copies of pleadings and
the entire evid.ence adduced at the trial for proving those corrupt practices.
The notice clearly stated that the noticee had the opportunity to cross-ex-
amine such witnesses as had already been examined and of calling evidence
p in his defence and of being heard. The noticee raised objection to the
notice alleging that it was vague, which was rejected by the High Court.
That order was challenged by a special leave petition in this Court which
was dismissed granting liberty to the noticee to apply in the High Court
for the precise particulars claimed by him. Ultimately certain portions from
the material on record were indicated by the petitioner on such a direction
G being given by the High Court. In view of the direction of this Court in the
special leave petition, it would have been more appropriate for the High
Court to indicate the precise portions. However, there is no prejudice
caused, inasmuch as the portions were indicated by the election pe'.;:ioner
on the High Court's direction. The election petitioner Prabhakar 1'.ashinath
H Kunte (PW-1) was called for cross-examination on behalf ci the noticee.
DR.RAMESHYESHWANTPRABOO v. P.K.KUNTE[J.S. VERMA,J.]413

The noticee was given full opportunity to cross-examine the witnesses A
already examined and to adduce evidence in his defence and to argue his
case in the High Court. The noticee Bal Thackeray did not choose to enter
the witness box and, therefore, the material present has to be examined
without any denial by the noticee as a witness in the case.

There is no dispute that no material which was not given to the B
noticee Bal Thackeray was used against him. We have already indicated
that the finding of proof of the corrupt practices alleged in the election
petition is based on the three speeches of Bal Thackeray which are not
denied either by Dr. Ramesh Prabhoo or by Bal Thackeray. Copy of the
text of those speeches is alsr undisputed. All this was furnished to the c
noticee Bal Thackeray. It i' difficult to visualise what prejudice could be
caused to the noticee on these facts and how there could be any non-com-
pliance of Section 99 of che R.P. Act in this situation.

In order to examine the contention of non-compliance of Section 99,
it is necessary to examine the requirements of that provision. Section 99 D
reads as under :

"99. Other orders to be made by the High Court. - (1) At the
time of making an order under section 98 the High Court shall
..Jso make an order -
E
(a) where any charge is made in the petition of any corrupt
practice having been committed at the election, recording -

(i) a finding whether any corrupt practice has or has not been
proved to have been committed at the election, and the nature of
F
that corrupt practice; and

(ii) the names of all persons, if any, who have been proved at
the trial to have been guilty of any corrupt practice and the nature
of that practice; and
G
(b) fixing the total amount of costs payable and specifying the
persons by and to whom costs shall be paid :

Provided that a person who is not a party to the petition shall
not be named in the order under sub-clause (ii) of clause (a)
unless- H
414 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
'
A (a) he has been given notice to appear before the high Court
and to show cause why he should not be so named; and

(b) if he arpears in pursuance of the notice, he has been given
an opportunity of cross-examining any witness who has already
been examined by the High Court and has given evidence against
B him, of calling uidence in his defence and of being heard.

(2) In this section and in section 100, the expression "agent" has
the same meaning as in section 123."

Sub-section (1) requires that at the time of making an order under
C Section 98, the High Court shall also make an order recording the names
of all persons, if any, who have been proved at the trial to have been guilty
of any corrupt practice and the nature of that practice. In other words,
while deciding the election petition at the conclusion of the trial and
making an order under Section 98 disposing of the election petition in one
D of the ways specified therein, the High Court is required to record the
names of all persons guilty of any corrupt practice which has been proved
at the trial. Proviso to sub-section (1) then prescribes that a person who is
not a party to the petition shall not be so named unless the condition
specified in the proviso is fulfilled. The requirement of the proviso is only
in respect of a person who is not a party to the petition and is to be named
E so that he too has the same opportunity which was available to a party to
the petition. The requirement specified is of a notice to appear and show
cause why he should not be named and if he appears in pursuance of the
notice, he has to be given an opportunity of cross-examining any witness
who has already been examined by the High Court and has given evidence
F against him and also the opportunity of calling evidence in his defence and
of being heard. In short, the opportunity which a party to the petition had
at the trial to defend against the allegation of corrupt practice is to be given
by such a notice to that person of defending himself if he was not already
a party to the petition. In other words, the noticee has to be equated with
G a party to the petition for this purpose and is to be given the same
opportunity which he would get if he was made a party to the petition.

This is the pragmatic test to be applied for deciding the question of
compliance of Section 99 of the R.P. Act. If the noticee had the opportunity
which he would have got as a party to the petition, then there can be no
H case of non-compliance of Section 99. The opportunity required to be given
DR.RAMESHYESHWANTPRABOO v. P.K.KUNTE[J.S. VERMA,J.]415

by· the proviso to sub-sectiOL< (1) of section 99 ;s the same and not more A
than that available to a party to the petition ~o defend himself against the
charge of corrupt practice. Applying the above test, there can be no doubt
that there is no non-compliance of Section 99 in the present case. The
noticee Bal Thackeray had the same opportunity which the returned can-
didate Dr. Ramesh Yeshwant Prabhoo got as a respondent to the petition. B
The noticee was given the opportunity to cross-examine any 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.
c
In this situation, th grievance made that specific portions of the
material which formed the record at the trial was not precisely indicated
to the noticee has "'' merit. It was clear from the pleading that the
allegation against the noticee was in respect of the three speeches made
by him, the particulars of which were given and the text of those speeches D
also was available to the noticee which he did not even deny. On these
facts, there is no ground to allege non-compliance of Section 99 of the R.P.
Act. This contention on behalf of the notieee Bal Thackeray is, therefore,
rejected ~nd the objection raised in the appeal of Bal Thackeray of
non-cor,;pliance of Section 99 of the R.P. Act has no merit.
E
We would now proceed to examine the facts of this case.

Speeches

It is in the light of the above discussion and the meaning of sub-sec-
tions (3) and (3A) of Section 123 that the effect of the alleged offending F
speeches has to be examined. The three speeches were made on 29.11.1987,
9.12.1987 and 10.12.87. The High Court has held that the speeches of
29.11.1987 and 10.12.1987 amount to corrupt practices under sub-sections
(3) and (3A) of Section 123, while the speech of 9.12.1987 is a corrupt
practice only under sub- section (3) thereof. The returned candidate Dr. G
Ramesh Yeshwant Prabhoo was present in all the three meetings in which
these speeches were given by Bal Thackeray. The consent of Dr. Prabhoo
for these speeches is implied from his conduct including his personal
presence in all the three meetings.

Certain extracts from the alleged speeches of Bal Thackeray, trans- H
416 SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A lated in english, are expressly pleaded in the election petition, as under :

From Speech of 29.11.1987

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

From Speech of 9.12.1987

"Hinduism will triumph in this election and we must become
hon'ble recipients of this victory to ward off the danger on Hin-
c duism, elect Ramesh Prabhoo to join with Chhagan Bhujbal who
is already there. You will find Hindu temples underneath if all the
mosques are dug out. Anybody who stands against the Hindus
should be showed or worshipped with shoes. A candidate by name
Prabhoo should be led to victory in the name of religion."
D From Speech of 10. 12.1987

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

It has been pleaded in the election petition that the above utterances
F in the three meetings are examples to show that the appeal to voters
emphasised that Dr. Ramesh Prabhoo was the only person who could
represent the Hindu community and, therefore, the voters should vote for
Ramesh Prabhoo in the name of religion. The full text of the speeches were
adduced in evidence and the contents thereof are not disputed. It may be
mentioned that a notice under Section 99 of the R.P. Act was issued to Bal
G Thackeray who merely filed an affidavit but did not enter the witness box.
The true import and impact of these speeches has, therefore, to be ad-
judged in the light of the evidence including the state of Dr. Ramesh
Yeshwant Prabhoo without the version in evidence of Bal Thackeray.

H The case was argued even before us on a demurer treating the
DR.RAMESHYESHWANTPRABOO v. P.KKUNTE[J.S. VERMA,J.]417

contents of the speeches as reproduced in the full text in evidence, of which A
the specific portions pleaded in the election petition are extracts. The
qu;stion is : Whether these speeches amount to corrupt practices under
sub-section (3) and/or (3A) of Section 123 as held by the High Court ?

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

First speech on 29.11.1987

"All my Hindu brothers, sisters and mothers gathered here .
c
........ Today Dr. Prabhu has been put up as candidate from your
Parle.......... But here one cannot do anything at anytime about the
snake in the form of Khalistan and Muslim......... The entire country
has been ruined and therefore we took the stand of Hindutva and
by taking the sitid stand we will step in the legislative Assembly. D
.......... Unless we step forward strongly it would be difficult for us
to live because there would be war of religion ........ Mnslims will
come. What will you Hindu (people) do. Are you going to throw
'Bhasma' (i.e. ashes) on them..... We won't mind if do not get a
votes from a single Muslim and we are not at all desirous to win E
an election with such votes....... therefore, there is a dire need of
the voice of Hindutva and therefore please send Shiv Sena to
Legislative Assembly...... who are (these) Muslims. Who are these
'lande'. Once Vasant Dada had called me when he was a Chief
Minister. He told me that rest is O.K. But asked me as to why I
was calling them Lande. But is it correct if they call us 'Kafer' (i.e. F
traitor) then we will certainly call them 'Lande' ....... They sh?uld
bear in mind that this country is of Hindus, the same shall remain
of Hindus ....... if Shiv-Sena comes to power and if the morchas
come ----first of all (we) shall make them come. Everybody will
have to take 'diksha' (i.e. initiation) of Hindu religion....... ," G
Second speech of 9.12.1987 ·

"....... The victory will not be mine or of Dr. Prabhu or of
Shiv-Sena but the victory will be that of Hinduism. You will be
instrumental in victory and you should become instrument for the H
418
I I SUPREMECOURTREPORTS [1995]SUPP.6S.C.R.
I ()

·A same. At last you have the right to get rid of the difficulties faced
by your caste, creed, gods deities and Hindu religion. ··'··· There-
fore, I want to say that today we are standing for Hinduism. .:....
·Whatever Masjids are there, if one starts digging the same, one
will find Hindu temples under the same. ~ ....... If any body stands
against Hindustan you should show courage by performing pooja
B (i.e. worship) with shoes. ...... And a person by name Prabhu who
· is contesting the election in the name of religion said ahead (in
the assembly). A 'Jawan' - like Prabhu should go there (in the
assemu "ly) •.•••. .-' -

Third speech of 10.121987

' ......• It will do, if we do not get a vote from any Muslim. If
anybody from them is present at this place he should think for
himself. I am not in need of their votes. But I want your vote ...••..
You must sent only Dr. Ramesh Prabhllof Shiv -Sena, otherwise
!
D Hindus "ill be finished. It will not take much take for Hindustan ,
. to be green (ie. Pakistan ?} .......'

As earlier stated, the three speeches of Bal Thackeray from which
the above extracts have been quoted are admitted. Similarly the interview
E of Dr. Ramesh Yeshwant Prabhoo and its text published in Janmabhoomi
Prawasi is admitted. Dr. Prabhoo was the Mayor of Bombay. Dr. Prabhoo
(RW-1} admitted his presence in the meetings held on 29.11.1987,
· 9.12.1987 and 10.12.1987 in which the above speeches were given by Bal
Thackeray. He admitted speaking him•elf also in these meetings. He has
said nothing in bis statement to suggest that he did not consent to the
·. · , F contents of the speeches of Bal _Thackeray. le his deposition, he has
· ' . expresSly admitted that the speeches of Bal Thackeray were according to
his election campaign. The element of the candidate's consent for the
_ . appeal to the voters made by Bal Thackeray in his speeches is, therefore,
adequately proved. About his interview published in the Janmabhoomi
Prawasi, issue of 9.12.1987, he said that the report is substantially correct,
G even .
though the first paragraph of that news item is incorrect. Omitting the
first paragraph of the news item which he denied, certain portions, trans-
lated into english, from the remaining news item publishing the interview
are as under :
•
H ' .•... Dr. Prabhu told me that there was a Hindu wave in Parle.
DR. RAMESH YESHWANT PRABOO v. P.K. KUNTE [J.S. VERMA, J.] 419

The battle is between Hindus and Muslims i.e. to say between A
nationalist and anti-nationalist. ...... .

xxx xxx xxx

Supremely confident about his victory in the Vile Parle bye-
election, Dr. Prabhu discounted any possibility of his defeats but B
he added that if he loses, it will mean that Hinduism has lost, ........."

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

The High Court has held the second speech to fall only under sub-
section (3) and not sub-section (3A), but the third speech has been held
to fall both under sub-sections (3) and (3A). We have already held the
E
third speech also to constitute the corrupt practice under sub-section (3).
The correctness of the english translation of a part of the third speech was
found to be defective at the hearing and, therefore, an agreed fresh
translation thereof was taken on record. Reading the speech in the light of
the fresh agreed tran.slation of the defective portion, it appears to us that
the High Court's finding that the third speech amounts also to the corrupt F
practice under sub- section (3A) cannot be affirmed, even though this
variation is of no consequence to the ultimate result.

Our conclusion is that all the three speeches of Bal Thackeray
amount to corrupt practice under sub-section (3), while the first speech is G
a corrupt practice also under sub-section (3A) of Section 123 of the R.P.
Act. Since the appeal made to the voters in these speeches was to vote for
Dr. Ramesh Prabhoo on the ground of his religion as a Hindu and the
appeal was made with the consent of the candidate Dr. Ramesh Prabhoo,
he is guilty of these corrupt practices. For the same reason, Bal Thackeray
also is guilty of these corrupt practices and, therefore, liable to be named H
420 \ SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
.A in accordance with Section 99 of the R.P. Act of which due compliance
has been made in the present case. ··

. We cannot help recording our distress at this kind of speeches given
by a top leader of a political party. The .Jack of restraint in the language
used and the derogatory terms used therein to refer to a group of people
B in an election speech is indeed to be condemned. The likdy impact of such
language used by a political leader is greater. It is, therefore, a greater need
for the leaders to be more circumspect and careful in the kind of language
they use mthe election campaign. This is essential not only for maintaining
decency and propriety ill the election campaign but also for the preserva-
C tion of the proper and time honoured values forming part of our cultural
heritage ancl for a free and fair poll in a secular democracy. The offending
speeches in tlie present case discarded the cherished values of our rich
cultural heritage and tended to erode the secular polity. We say this, with
the fervent hope that our observation has some chastening effect in the
future election campaigns.
D ,
For the aforesaid reasons, both the appeals must fail We may
observe that considerable irrelevant material was brought on record during
the trial at the instance of both ·the parties which, apart from needlessly
enlarging the scope of the trial, _has Jed to needless extra expense and
E wastage of time even in the hearing of these appeals. In these circumstan-
ces, it is appropriate to direct the parties to bear their own costs in this
court. Accordingly, both the appeals are dismissed.

l.M.A. Appeals dismissed.

•