MOHD. ASLAMversusUNION OF INDIA AND ORS.

                                                                                     /

A                                 MOHD.ASLAM
                                           v.
                           UNION OF INDIA AND ORS.

                                  MARCH 22, 1996

B        (J.S. VERMA, N.P. SINGH AND K. VENKATASWAMI, JJ.]


            Constitution of India, 1950:

         A1ticle 32-Writ petition filed for reconsideration of an earlier judg-
C   mmt-Held, A1ticle 32 is not available to assail the correctness of a decision
    on merits or to claim its reconsideration.

            Representation of the People Act, 1951.

            S. 123(3), (3-A)-Conupt practice-Writ Petition filed to reconsider the
D judgment of this Court in Manohar Joshi's case-Held, not main-
    tainable-The apprehensions and misgivings expressed in the writ petition are
    imaginary and baseless-There is no occasion to read in the judgment in
    Ma11ohar Joshi, something which is not said or to say that it conflicts with
    concept of secularism in S.R. Bommai where the question relating to the
E   meaning of sub-sections (3) and (3-A) of s.123 neither arose nor was decided.

          Khoday Distilleries Limited & Anr. v. The Registrar General Supreme
    Court of India, (1995) 6 Scale 742, followed.

          Mano/tar Joshi v. Niti11 Bhaurao Patil and Another, [1996) 1 SCC 169,
F   explained.

        A.R. Antulay v. RS. Nayak & Am:, [1988) Suppl. 1 SCR 1, S.R.
  Bommai and Others v. Union of llldia and Others, (1994) 3 SCC 1, Jamaat-
  E-lslami Hind v. Union of India, [1995) 1 SCC 428, Dr. Ramesh Yeshwant
G Prabhoo v. Sl11i Prabhakar Kashinath Kunte & Others, [1996] 1 SCC 130,
  Shri Suryakalll Ve11katrao Mahadik v. Smt. Saroj Sa11desh Naik (Bhosale),
  [1996) 1 SCC 384 and Mohan v. Bhairon Singh Shekhawat, (1996) 1 Scale
  SP 3, referred to.

            CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 135 of
H   1996.
                                           782
    \
                                 MOHD.ASLAMv. U.O.l.                            783

              (Under Article 32 of the Constitution of India.)                         A
              Dr. Rajiv Dhawan and M.M. Kashyap for the Petitioner.

              O.P. Sharma for the Respondents.

              Danial Lalifi, Avikar Ray, Akhtar Hussain and Ms. Nanita Sharma          B
        for the Jntervenors.

              The following Order of the Court was delivered :

              The prayer in this writ petition under Article 32 of the Constitution
        of India is for reconsideration of the Judgment in Ma1tohar Joshi v. Nitin     C
        Bhaurao Patil and Anotlw; [1996] 1 SCC 169. The petitioner's contention,
        in substance, is that the judgment is incorrect.

               It . is sufficient to say that Article 32 of the Constitution is not
        available to assail the correctness of a decision on merits or to claim its
        reconsideration. This has been clearly reiterated in the recent decision in    D
        Kltoday Distilleries Limited & Anr. v. The Registrar General, Supreme Coult
        of India, (1995) 6 Scale 742, wherein the decision in A.R. Antulay v. R.S.
r       Nayak & Anr., [1988] Supp.l SCR 1, has been explained. This alone is
        sufficient to dismiss the writ petition.

               However, in view of certain apprehensions expressed by the              E
        petitioner, we deem it proper to make some further observations now,
        which we had considered unnecessary to incorporate in the judgment in
        Manohar Joshi. We may observe that the decision of this Court in S.R.
        Bommai and Others. v. Union of India and Others, [1994] 3 SCC 1, did not
        relate to the construction of, and determination of the scope of sub-
        sections (3) and (3A) of Section 123 of the Representation of the People       F
        Act, 1951 and, therefore, nothing in the decision in S.R. Bonunai is of
        assistance for construing the meaning and scope of sub-sections (3) and
        (3A) of Section 123 of the Representation of the People Act. Reference
        to the decision in S.R. Bommai is, therefore, inapposite in this context.

              We may also add that the challenge in the writ petition to the
                                                                                       G
        correctness of the decision in Manohar Joshi is based on a misreading of
        that decision. In the judgment, the decision on the question of law is based
        on earlier Constitution Bench decisions of this Court by which we are
        bound; and the observation therein which is challenged as incorrect in this
        writ petition, is not the basis of the decision but an opinion expressed on    H
    784                   SUPREME COURT REPORTS                   [1996) 3 S.C.R.

A an assumption if the making of the alleged statement of the hope of
    Maharashtra becoming a Hindu State, in the speech is held to be proved,
    without recording a finding that it was so proved. This allegation was based
    on a police report and Manohar Joshi did not admit the making of such a
    statement in his speech. Moreover, strong disapproval was expressed of
    such a statement, if actually made. This is clear particularly from paras 62
B   to 67 of the decision in Manohar Joshi reported in (1996] 1 SCC 169.
    Specific reference has been made for this purpose in paras 64 to 67 (SCC)
    to the decision in Jamaat-E-Is/ami Hind v. Union of India, (1995] 1 SCC
    428, to indicate the standard of proof required for proving a corrupt
    practice which had not been satisfied in Manohar Joshi in view of the
C   absence of legal evidence to prove the corrupt practice alleged in the case.


           A careful and dispassionate reading of the decision would show that
    the apprehensions and misgivings expressed in the writ petition, are imagi-
    nary and baseless. There is no occasion to read in the judgment in Manohar ·
D   Joshi, something which is not said or to say that it conflicts with the concept
    of secularism in S.R Bommai where this question relating to the meaning
    of sub-sections (3) and (3A) of Section 123 of the Representation of the
    People Act neither arose, nor was decided. The application of the decision
    in Manohar Joshi in cases like Dr. Ramesh Yeshwant Prabhoo v. Shri
    Prabhakar Kashinath Kunte & Others, [1996] 1 SCC 130, Shri Suryakant
E   Venkatrao Mahadik v. Smt. Saroj Sandesh Naik (Bhosale), [1996] 1 SCC
    384, and Mohan v. Bhairon Singh Shekhawat, (1996) 1 Scale SP 3, is another
    pointer to indicate that there is nothing in the judgment in Manohar Joshi
    to give rise to any such apprehension that it can enable misuse of religion
    for making an appeal for votes in an election.

F         We may add that the deficiency, if any, in the statutory prohibition
    enacting the corrupt practice in Section 123 of the Representation of the
    People Act, has to be cured by legislation and that deficiency cannot be
    cured by reading into a penal provision something which is not enacted
    therein. The proposal was made at one time to perform the legislative
G   exercise of enacting a provision to prevent any possible misuse of religion
    during elections, but it was, unfortunately, abandoned. We do hope that at
    least now there would remain no misapprehension in the mind of anyone.

           The writ petition is, therefore, dismissed.

    R.P.                                                      Petition dismissed.