Holding

The Supreme Court held that the newspaper report was admissible, Section 125 is not relevant to the interpretation of Section 123(3A), the provision is intra vires and does not infringe Article 19, truth is not a defence, and the appellant's speech did not fall within the mischief of Section 123(3A).

Summary

The appellant, Ebrahim Sulaiman Sait, was elected to the Lok Sabha from Manjeri, Kerala, but his election was declared void by the Kerala High Court on the ground that a speech he made during the campaign promoted religious enmity, violating Section 123(3A) of the Representation of the People Act, 1951. The appellant challenged the decision, arguing that the newspaper report of his speech was incomplete and could not be relied upon, and that the provision infringed his Article 19(1)(a) freedom of speech. The Supreme Court held that the press report could be admitted as evidence when the appellant himself acknowledged its accuracy, and that Section 125 was irrelevant for interpreting Section 123(3A). It further ruled that the provision is intra vires, does not violate Article 19, and that truth is not a defence to a charge of corrupt practice under the section. The Court found that the speech, though directed at a political party, did not amount to promotion of enmity between classes and therefore the corrupt practice charge was not proved beyond reasonable doubt. Consequently, the appeal was allowed and the election petition dismissed.

Issues considered

Whether a newspaper report of a candidate's speech, without the full text, can be relied upon to establish a corrupt practice under Section 123(3A).
Whether Section 125 of the Representation of the People Act, 1951, is relevant for interpreting the scope of Section 123(3A).
Whether Section 123(3A) violates the freedom of speech guaranteed under Article 19(1)(a) of the Constitution.
Whether a speech aimed at a political party can be deemed to promote enmity between different classes of citizens on religious grounds.
Whether the truth of the statements made in the speech is a defence against a charge under Section 123(3A).
Whether the fact that both the appellant and the rival candidate belong to the same religion affects the applicability of Section 123(3A).

Legislation cited

Representation of the People Act, 1951s. 123(3A), s. 125

Subjects

election lawcorrupt practiceRepresentation of the People ActSection 123(3A)freedom of speechArticle 19communal enmityelection petitionLok SabhaKerala

Judgment

l l 48

EBRAHIM SULAIMAN SAIT
v.
M. C. MUHAMMAD AND ANR.
November 7, 1979
B [A.. C. GUPTA AND P. S. KAILASAM, JJ.J
Corrupt practice-Full text of the alleged speech of the returned candidate
to sho'H.' that his election speech was an attempt to promote feelings of enmity
between different classes of citizens of India on grounds of religion not. reported
by the PJ'ess, but admitted by him in evidence that "the reporter's version of
the speech do_es more or less tally"-Reliability in evidence regarding corrupt
·C practice within the 1neaning of Section 123(3A). of the Representation of the
People Act 1951.

Representation of the People Act, 1951, Section 123(3A) scope and appli·
cation of-Provisions of Section 125 are not relevant to ascertain the scope and
.
application of Section 123(3A) of the Act.

Representation of the People Act, 1951, Section 123(3A), whether violative
of Article 19(1)(a) of the Co1131itution. ' ·

The election of the appellant to Lok Sabha from the Manjeri Parliamen-
tary Col)Stituency i.n Kerala was declared void by the High Court of Kerala
on an election petition presen!ed on May 3, 1977 by the first respondent. who
was an elector in that Constituency on the ground that the returned candidate
was guilty of Corrupt practice mentioned in sub-section (3A) of Section .J23
of the Representation of the People Act, 1951. The allegation was that during
the election dampaign the appellant made a speech in English at a place
called ·Pullickal within the said constituency and a- 1eport of this speech trans-
lated into Malayalam appeared in the local daily CHANDRIKA in its issue
of March 17, 1977 which, fell within the mischief of Section 123(3A) of the
Act.

Allowing the appeal, the Court,
HELD : 1. Even though the full text of the alleged· speech of the returned
candidate to show that his election speech was an attempt to promote feelings
of enmity between different classes of citizens of India on grounds of religion
was not reported by the Press, the press report could be relied On when there
was not even a distant suggestion ,that for want of production of the entire
~peech such report should . D.ot be r~lied on and more particularly when, as in
the instant case, the appellant himself admits that it wa's not possible for him
at "this distance of time to recall what exactly he had stated in speech" and
that reporter's version of the speech "does more or less tally". [1151B-c]

2. The provisions of Section 125 are not relevant .to ascertain the scope
and application of Section 123(3A) of the Representation of the People Act.
It is true that the act that is called Q com1pt practice in Section l23(3A)
is also what constitutes an electoral offence under section 125, but to attract
section 123 (3A) the act must be done by the candidate or his agent or any
E. s. SAIT v. M. c. MUHAMMAD (Gupta, J.) 1149

other person with the consent of the candidate or his agent and for the furthe;- A
ance of the election of that can4idate or for prejudicially affecting the election
of any candidate, but under section 125 any person is punishable who is
guilty of such an act and the motive behind the act is not stated to be on
ingredient of the offence. Section 123(3A) and section 125 need not be read
together to ascertain the scope aud effect of' Section 123(3A). [11520-F]
Kedar Nath Singh v. State of Bihar, [1962] Suppl. 2 SCR 769, distinguish- B
ed.
3. Section 123(3A) of, the Representation of the People Act, 1951 is ~ot
violative of Article 19(l)(t>) of the Constitution. [1153AJ
Jamuna Prasad Mukhariya and Ors. v. !Achhi Ram and Ors., [1955] l' SCR
· 608; relied on.
4. A speech, though .its immediate target is a political party, may yet be such c
as to promote feelings of enmity or hatred between different classes of citizens .
.It is the likely effect of the speech on the voters that !ms to be considered.[l 153H,
1154A]
5. To come under the purview of the provisions of Secti~23 (3A), the
r fact that the election -petitioner and the returned candidate belon~d to the
same religion is immaterial. [1154A-BJ ''---

Kultar Singh v. Mukhtiar Singh, [1964] 7 SCR 790 applied.
6. Truth is no.t an answer to a charge of corrupt practice under section
123(3A); what is relevant is \Vhether the speech promoted or sought to pro-
mote feelings of enmity or hatred as mentioned in that provision. If it is
found that it was so, then it is immaterial whether what was said was based
on fuct; or not. [U54F-G] E
In the instant case, it cannot be said that the speech falls within the mischief
of section 123(3A) of the Act. No doubt, the tone of the speech was commu-
na1, but in this country communal parties are allowed to function in politics.
The la,v also does no~ place any bar on describing a party as irreligious. The
speech sought to criticise only the wrong policy of the Muslim League ( oppo-
sition) in aligning with parties that were responsible for atrocities against the F
Muslims and not inst to emphasise the atrocities. [1155B, !156A-B]
Kanti Prasad Jayashankar Yagnik v. Purshottamdas Ranchhoddas Patel and
Ors., [1969] 3 SCR 400; referred to. ·

CML APPELLATE JURISDICTION : Civil Appeal No. 11 of 1978.
From the Judgment and Order dated 6-12-77 of the Kerala High G
Court in Election Petition No. 18/77.
F. S. Nariman, Anil B. Diwan, K. J. John, A. N. Haksar, Shakil
Ahmed and Manzi/ Kumar for the Appellant.
P. Govindan Nair and N. Sudhakaran for the Respondent.
TI1e Judgment of the Court was delivered by H
GUPTA, J.-This is au appeal under section 116A of the Repre-
sentation of the People Act, 1951.
1150 SUPREME COURT REPORTS [1980] 1 S.C.R.

The election of the appellant to Lok sabha from the Manjeri
Parliamentary constituency in Kerala was declared void by the High
Court of Kerala at Emakulam on an election petition presented on
May 3, 1977 by the first respondent who was an elector in that consti-
tuency on the ground that the returned candidate was guilty of corrupt
practice mentioned 'in sub-section (3A) of section 123 of the Act.
B The appellant was a camjidate of the Muslim League; the second res-
pondent before us contested the election as a nominee of a dissident
group of the Muslim League described as "Muslim League ( Opposi-
tion)" supported by, as stated in the election petition. "Janata Party
and Marxist Party".
Section 123 (3A) reads:
"123. Corrupt practices.~The following shall be deemed
to be corrupt practices for the purposes of this Act : -

(3A) The promotion of, or attempt to promote, feelings
.))
of enmity or hatred between different classes of the citizens
of India on grounds oJ religion, race, caste, community, or
language, by a candidate or his agent or any other person with
the consent of a carididate or his election agent for the fur-
therance of the prospects of the election of that candidate
.E for prejudicially affecting the election of any candidate."
It is said that during the election campaign the appellant made a speech
in English at a place called Pullickal within the said constituency and a
~eport of this speech translated into Malayalam appeared in the local
daily CHANDRIKA in its issue of March 17, 1977 which, it is alleg-
ed, falls within the mischief of section 123 (3A). The election peti-
tion contains several other allegations but as the decision of the High
Court is based on this ground only, it is not necessary to refer to
them. As already stated, the report of the speech (Ext. P-6) is a
translat¢ version in Malayalam of the substance .of the speech delivered
in English.
Mr. Nariman appearing for the appellant contended that as the full
text of the speech was not available, it would be unsafe to draw any
conclusion from the speech as reported. This contention which was
also raised before the High Court is in our opinion, adequately answered
in the impugned judgment. The High Court says : ·
"It is true that Ext. P-6 does not purport to contain the
full speech, but the important aspect which has to be noted
is that no contention has been raised in the written statement
E, s. SAIT ": M. c. MUHAMMAD (Gupta,].) 1151
I
to the effect that there were other portions in the speech of A
the first respondent which mitigated the evil contained in Ext.
· P-6 .... When the 1st respondent gave evidence as R.W.1
there was not even a distant suggestion that for want of pro-
duction of the entire speech Ext. P-6 could not be relied on.
Again, when the petitioner gave evidence as P.W.1 no question
was asJced to him regarding the other matters, if any, spoken B
... by the first respondent."
The first respondent in High Court is the appellant before us. In
this affidavit answering the allegations made in the election petition, the
appellant admits that though it was not possible for him "at this dis-
tance of time to recall" what exactly he had stated in the speech, "the c
reporter's version of the speech does more or less tally" with the views
expressed by the appellant in the meeting. We are therefore unable
to agree that the report of the speech, Ext. P-6, cannot be relied on.
The speech as reported in CHANDRIKA is as follows :
"The Indian Union Muslim Leagne President Sulaiman D
Sait said at Pnllicka! today that the Society will never forgive
the anti-religious leagne people. It is because these people
had helped the Jansangh which had killed many Muslims in
Northern India and at Tellicherry and had burnt the sacred
· mosques. The~e people have also been leading the poor Mtis-
litns towards the camp of communal reactionari~ and there.. E
fore Society can never forgive them.
He said that these anti-religious people were by spreading
lies and false propaganda blackening the faces of the leaders
and· giving, away the secrets Of our society to marxists and the
Hindu leaders. He reminded the anti-religious leagne that F
by doing this they were destroying that institution which was
fed and brought up by Marhyum Khaede Milla! Ismail·Sahib
and Bafaki Thanga!.
He continued that Janata Party, which is fonned urider
the gnidance of Jansangh is an orphanage of all those political
leaders who did not secu:re any seats or who had separated G
from their original party. These parties, he said, will not be
allowed. to see the assembly or parliament. He made it very
clear that the anti-religious parties must not entertain the fat
hopes ,of securing the votes of any Muslim, in whose head the
Islam's blood was flowing.
H
Janab Sait Sahib was addressing a large gathering at the
public meeting of .the united front held at Pullickal. The
1152 SUPREME COURT REPORTS [1980] 1 S.C.R.

A meeting was presided over by Cherukavu Panchayat Presideflt
P. P. Abdul Gafoor Moulavi. The meeting was inaugurated by
P. P. Ummarkoya."

Mr. Nariman submitted that it was necessary to ascertain the true scope
and effect of sub-section (3A) of section 123 before considering whe-
B ther the speech fell within the mischief of that sub-section and for that
purpooe, according to Mr. Nariman, section 123 (3A) must be read
with section 125 of the Act. Part VII of the Representation of the
People Act, 1951 deals with "Corrupt Practices and Electoral Offen-
ces". Section 123 is in Chapter I of Part VII which catalogues "the·
c Corrupt Practices and section 125 is in chapter III of that Part which
lists the Electoral Offences. Section 125 provides :

"125. Promoting enmity between classes in connection
with election.-Any person who in connection with an election
under this Act promotes or attempts to promote on grounds
D of religion, race, caste, community or language, feelings of en-
'mity or hatred, between different classes of the citizens of
India shall be punishabfo with imprisonment for a term which
may extend t9 three years, or with fine, or with both."

It is true that the act that is called a corrupt practice in section 123(3A}
E is also what constitutes an electoral offence under section 125 but to-
attract 123 (3A) the act must be done by the candidate
or his agent or any other person with the consent of the candidate or
his agent and for the furtherance of the election of that candidate
or for prejudicially affecting the election of any candidate, but under
section 125 any person is punishable who is guilty of such an act and
I'. the motive behind thei act is not stated to be an ingredient of the offence.
We do not find any reason why the two provisions, section 123(3A) and
section 125, must be read together to ascertain the scope and effect of
section 123(3A). Mr. Nariman's contention is that reading section·
123(3A) in the light of section 125 we should hold that incitement to-
G ~iolence or likelihood of public disorder is one of the requirement of
he corrupt practice mentioned in section 123. (3A) and that in the
bsence of any evidence in this case on that aspect, the corrupt prac-
ce alleged.against the appellant cannot be said to have been establish-
ed. Mr. Nariman referred to Kedar Nath Singh v. State of Bihar(') in
support of his contentipn. In Kedar Nath's case, in order to save
B section 124A of the Indian Penal Code, (which makes sedition an
offence) from being questioned as infringing the freedOO) of speech and
(1) [1962] Supp 2 S.C.R. 769
E. s. SAIT v. M. c. MUHAMMAD (Gupta, J.) 1153

expression guaranteed by the Constitution, this Court limited the appii- A
cation of the provision to acts involving intention or tendency to create
disorder, or disturbance of law and order, or incitement to violence.
Whether the electoral offence mentioned in section _125 of the Act
should be read as requiring a similar ingredient does not arise for
consideration in this case; in our opinion the provisions of section 125
are not relevant to ascertain the scope and application of section 123 B
(3A). As to whether section 123(3A) can be impugned on the ground\
' been answered in Jumuna Prasad Mukhariya and others v. Lachhi Ram
and others.(') In that case this Court overruled the contention that
I
th~t it violates Artic~e 19(1) (a) of the Constitution, the question has J

section 123(5) and 124(5) of the Representation of the People Act, C
1951, as the provisions stood at the time, were ultra vires Articles
19(1) (a) of the Constitution. Section 124(5) which made "systema-
tic appeal to vote or refrain from voting on grounds of caste, . race,
community or religion" a 'minor' corrupt practice is similar to section
123J3A) of the Act as it stands now. Bose J. speaking for the Court
in Jumuna Prasad's case observed : "These laws do not stop a man D
from speaking. They merely prescribe conditions which must be ob-
served if h~ wants to enter Parliament. The right to stand as a candi-
date and contest an election. is not a common law right. It is a special
right created by statute and can only be exercised on the conditions lai<I
down by the statute. The Fundamental Rights chapter has no bearing
on a right like this created by statute. The appellants have no funda- E
mental right to be elected members of Parliament. If they want that
they must observe the rules. If they prefer to exercise their rigbt of
free speech outside these rules, the impugned sections do not stop them.
We l1old that these sections are intra vires." We are therefore unable \
to accept the construction of section· 123(3A) as suggested by Mr.
Nariroan. F
Mr. Nariman's next contention was that a political party could not
· be described as a "class" in the sense the expression ''cla,ses of the
citizens of India" has been used in section 123 (3A), that whatever the
appellant had said in his speech was directed against a political party.
Muslim League (Opposition), and therefore the speech did not fall
G
within the mischief of that provision; We do not find it necessary to
consider whether a political party is a 'class' within the meaning of sec-
tion 123 (3A). The question for decision is whether the speech deli-
vered by the appellant promoted or attempted to promote feelings of
enmity or hatred between different classes of the citizens of India on
' the ground of religion. A speech, though its immediate target is a H
political party, may yet be such as to promote feelings of enmity er ·
(I) [1955] l S.C.R. 608.
19-743 SCl/79
1154 SUPREME COURT REPORTS [1980] 1 s.c.R.

A hatred between different classes of citizens. It is the likely effect of
the speecJ:; of the voters that has to be considered. Wc also find no
substance in another contention urged by Mr. Nariman that section 123
(3A) was inapplicable to this case because the appellant and the
candidate of the Muslim Leagne (Opposition) were both Muslims. This
Court in Kultar Singh v. Mukhtiar Singh(') held that a corrupt prac-
B tice under section 123 "can be committed by a candidate by appealing
to the voters to vote for him on the ground of his religion even though
his rival candidate may belong to the same religion".
The following portions of the speech reproduced above have been
alleged as objectionable :
c The first paragraph ·of the speech as reported contains a statement
that the society will not forgive the anti-religious Leagne people, mean-
ing the Muslim League (Opposition), because of their alliance with
J ansangh that had killed many Muslims in Northern India and also at
Tell,i.cberry and had burnt mosques and, further, that these people had
been driving the poor Muslims to the camp of !he communal reactiona-
D
ries. In the second paragraph of the report, it is alleged that these
anti-religious people were giving away the secrets of "our society" to
"Marxists and Hindu leaders". The third paragraph states that the
speaker made it clear that these anti-religious parties must not enter-
tain the hope of securing the votes of Muslims "ir, whose head the
E Islam's blood was flowing". Mr. Nariman submitted that the allega-
tions as regards the killing of Muslims and the burning of mosques
were based on facts and he referred to the report of the Commission of
Inquiry that investigated the facts relating to the distnrbances which took y
place in Tellicherry in 1971. In our opinion truth is not an answer to
a charge of corrupt practice under section 123(3A); what is relevant is
F whether the speech promoted or sought to promote feelings of enmity
or hatred as mentioned in that provision. If it is found that this was
so, then it is immaterial whether what was said was based on facts or
not, especially when in this case the events mentioned occurred years
ago.
Tuniing now to. the speech, the allegations of killing of Muslims
and burning of mosques appear to have been made against Jansangh
which is a political party. It is not claimed that this is a party whose
member;hip is restricted to Hindus only. The members of the Muslim
Leagne (Opposition) are descn'bed as "anti-religious people" but as
held by this Court in Kanti Prasad Jays hanker Yagnik v. Purs/wttamdas
Ranchhoddas Patel and others,( 2) the law does not place any bar
'
H _...,,_
on
(I) [1964] 7 S.C.R. 790
(2) (1969] 3 S.C.R. 400.
E. s. SAIT v. M. c. MUHAMMAD (Gupta, 1.) I 155

describing a party as irreligious. Then it is said that these people were A
"giving away" the "secrets" of the Muslim society to "Marxists and the
Hindu leaders". It is not clear what was the nature of the "secrets"
),.) which wer1: being passed on to the Hindu leaders and to the Marxists.
It is to be noted that the recipients of the information were not only the
Hindu leaders but the Marxists as well. The speech appears to have!\
ended with the assertion expressed in rather high flown language that B
the anti-religious parties had no hopes of securing the vote of any Mus-
lim "in whose head the Islam's blood was flowing". ·
Reading the speech as a whole it cannot be denied that its tone is
communal, but in this country communal parties are all?wed to func-
tion in politics. That being so, how an appeal to the voters, such as c
the one made in the speech in question, should be viewed in the context
·of Corrupt Practices mentioned in the Act, has been explained by
Gajendragadkar. C.J. speaking for the Court in Ku/tar Singh v. Mukh-
tiar Singh (supra) : ·
"It is well-known that there are several parties in this
D
country which subscribe to different political and economic
ideologies, but the membership of them is either confined to,
<lr predominantly held by, members of particular communities
<lr religions. So long as law does not prohibit the formation
<lf such parties and in fact recognises them for the purpose
of election and parliamentary life, it would be necessary to E
remem"·~r that an appeal made by such candidates of such
parties for votes may, if successful, lead to their election and
in an indirect way, may conceivably be influenced by con-
sideration Of religion, race, caste, community or language.
This infirmity cannot perhaps be avoided so long as parties
are allowed to function and are recognised, though their F
'omposition may be predominantly based on membership of
particular communities or religion".
To indicate the effect of the speech on the minds of the ordinary
voters, the electrion petitioner examined two witnesses. P.W. 2 and
P.W. 4. P.W. 2 P. C. Mohammad said that after ·1istening to the ap- G
pellant's speech, "the Muslim voters looked with hatred at those people
who stood against them", but when questioned as to which sentence
in the ~peech attempted to promote the f~eling of hatred, the Witness
referred to the first sentence and he himself went on to say that "what
the sentence really means is that it is not proper to unite with Jansailgh".
P.W. 4 Hidre also said in the beginning that the speech was "intended H
to destroy communal harmony", but he himself admitted later in his
testimony that the only effect of the speech was that after the meeting
1156 SUPREME COURT REPORTS [1980] 1 S.C.R.

,A people were saying that "the Opposition League candidate must be
defeated". It seems to us that the speech sought to criticise the wrong
policy of the Muslim League (Opposition) in aligning with parties that
were all~ly responsible for atrocities against the Muslims and not just
to emphasise the atrocities. In our opinion it cannot be said that the
speech falls within the mischief of section 123(3A) of the Act; we
B have reached this conclusion keeping in mind the well established prin-
ciple that the aJ!egation or corrupt practice must be proved beyond •
reasonable doubt.
J
The appeal is allowed with costs and the election petition is dis-
missed.

V.D.K. Appeal allowed.

•