The Supreme Court (Varma J) in the case of Dr Ramesh Yeshwant Prabhoo (1995 (7) SCALE 1) held Dr Prabhoo and Bal Thackeray guilty of corrupt practice having appealed for votes on the ground of religion (Hindu religion) u/s. 123 (3) of the Representation of People Act, 1951. However, in the next judgement (1995 (7) SCALE 30) Manohar Joshi was exonerated. The Supreme Court did not change the law, but in the process made observations which have the effect of virtually giving licence to communal parties to invoke religion in electoral battle.
 

Now for a detailed analysis of the judgements.
 
Dr Ramesh Prabhoo had been held guilty of corrupt practice u/s. 123 sub-section (3) and (3A) of the Act, by the Bombay High Court in Election Petition No. 1 of 1988 (pertaining to election held on 13^th December, 1987). In that case, Bal Thackeray was held to be his agent and as such with his consent had appealed for votes on the ground of Dr Prabhoo’s religion and that the said appeal had promoted or tended to promote feelings on enmity and hatred between different communities. Prabhoo’s election was declared to be void on the ground u/s. 100 (1) (b) of the Act. Bal Thackeray was named u/s. 99 of the Act. Justice Varma dismissed both the appeals by Prabhoo and Bal Thackeray.
 
Manohar Joshi’s election was also declared void u/s 100 (1) (b) of the Act in Election Petition No. 24 of 1990 (pertaining of election held in February 1990), by the Bombay High Court. In the election rally held on 24^th February, 1990, Bal Thackeray, Pramod Mahajan (BJP) and others including Manohar Joshi had addressed the meeting appealing for votes. Bal Thackeray’s speech on that occasion (and on earlier occasions) was not different from the speeches delivered in Ramesh Prabhoo’s campaign. However, Varma J held that Bal Thackeray was not the agent of Manohar Joshi so as to attract the provisions of S.100 (1) (b) of the Act and that Manohar Joshi’s appeal was not an appeal on the basis of his religion. Varma J thus allowed the appeal of Manohar Joshi. In both these matters it was made known to the Supreme Court that Bal Thackeray was the leader of Shiv Sena.
 
In Prabhoo’s case, Varma J construing the manner of appeal for votes in the name of religion (u/s. 123 (3) of the Act) held that the words used need not be direct, and if indirect but lead to an inference that the appeal is on the basis of religion would be sufficient to invoke the prohibition u/s. 123 (3) of the Act. In terms he said: “The substance of the speech and the manner in which it is meant to be understood by the 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 in the 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 kept in view.”
 
However, in Manohar Joshi’s case, the speech which was held to have been proved was the speech delivered by him on 24^th February, 1990 which he had, inter-alia, stated that the first Hindu State will be established in Maharashtra. Varma J held that “however despicable be such a statement it cannot be said to amount to an appeal for votes on the ground of his religion.” He further observed that was at best the “expression” of “such a hope”, though “we would express our disdain at the entertaining of such a thought of such a stance in a political leader of any shade in the country.” Though the statement was “despicable” and to be looked at with “disdain”, in Varma J’s opinion it was not a corrupt practice “to permit negation of the electoral verdict.” What was overlooked in this case, is his own observations in Prabhoo’s case, as set out above. We are made to believe that in Manohar Joshi’s case, we have to ignore that he was addressing an election rally in which Bal Thackeray and Pramod Mahajan had given the most provocative speeches. We have to overlook the manner in which it was meant to be understood, and the manner in which it would be understood by such an audience. We have to forget the surrounding circumstances and that was the final rally before closing of election campaign 48 hours before the date of election. We have to imagine that in such a rally the audience had only gathered to hear Manohar Joshi (in isolation) expressing a pious – but disdainful, despicable – hope that a Hindu State would be established!
 
Why disdainful? Why despicable? The Learned Judge has not explained. But coming from a Judge from the apex Court, it is legitimate to presume that the Judge had S R Bommai Vs. Union of India (1994 Vol. 3 SCC 1) in mind. For, it is in that case a nine judges Bench of the Supreme Court has clearly spelt out that our Constitution prohibits the establishment of a theocratic State. Yet a political leader could be permitted to express in public – in an election rally – a hope that he would establish a Hindu State, though such a desire was opposed to the unalterable basic feature of the Constitution!
 
In Prabhoo’s case, it was argued that the appeal for votes on the basis of religion, in order to make it prohibitive u/s. 123 (3) of the Act, should necessarily be related to the religion of the candidate himself. Accordingly it was contended that it did not prohibit the candidate from seeking vote in the name of a religion to which the candidate did not belong. Thus, a Muslim candidate contesting on behalf of BJP/Shiv Sena could appeal for votes in the name of Hindu religion, as the appeal is not on the basis of “his” religion. Similarly, it was argued that appeal to refrain from voting must also be on the basis of the religion of that other candidate, and then only it could be said that such an appeal fails within S. 123 (3) of the Act. That is to say, a BJP candidate contesting against any one who happens to be a Hindu, could say that “Islam (or for that matter Christianity) is no good for us” and therefore vote for BJP, and such an appeal would not be a corrupt practice u/s. 123 (3) of the Act. Varma J seems to have accepted these contentions when he says: “There can be no doubt that the word “his” used in sub-section (3) 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 the plain language of sub-section (3) and this is the only manner in which the word “his” used therein can be construed”. He further says: “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 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 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)”.
 
These observations are directly contrary to what is stated in S R Bommai (Supra) at Para 149:
 
“With respect, we are unable to accept this contention. Reading sub-sections (3) and (3A) of Sections 123 together, it is clear that appealing to any religion or seeking votes in the name of any religion is prohibited by the two provisions. To read otherwise is to subvert the intent and purpose of the said provisions. What is more, assuming that the interpretation placed by the learned counsel is correct, it cannot control the content of secularism which is accepted by and is implicit in our Constitution.”
 
Again in R Prabhoo’s case, it was argued that in order to sustain the charge of corrupt practice u/sub-section (3), more appeal is not enough, but there should be a further element of prejudicial effect on public order. Varma J has rightly negated this contention. So also he has held that the appeal need not be a direct appeal. Further, after 20.9.61, since the Act stood amended, even one appeal could be sufficient to bring home the charge. Yet Manohar Joshi’s appeal was not held to be impermissible.
 
It was argued that S.123 (3) of the Act was ultra vires Act. 25 of the Constitution of India which guarantees freedom of conscience and propagation of religion. This contention was not accepted. But the Learned Judge takes into account certain statements made by A K Sen in the Parliamentary Debates. Inter-alia, the following statements were relied on i.e. “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. The right to preserve one’s language cannot be taken away by an election law. That is as clear as daylight” …..But we are not debating here – on the aesthetics of language or the philosophy of language; nor are we here to debate the fundamental rights of a citizen to preserve his own language and culture. Fortunately, that is guaranteed to every man and woman in this country as it is not elsewhere…”
 
From this, Varma J infers “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”. Thereafter, he proceeds further to say that “mention of religion as such in an election speech is not forbidden by sub-section (3)” so long as it does not amou8nt to an appeal to vote for a candidate on the ground of his religion or refrain from voting on the ground of other candidate’s religion.
 
He then says:
 
“It cannot be doubted that an election speech made in conformity with the fundamental right to freedom of religion guaranteed under Article 25 to 30 of the Constitution, cannot be treated as anti-secular to be prohibited by sub-section (3) of Section 123, unless it falls within the narrow net of the prohibition 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 hit by the prohibition contained in sub-section (30), 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. When it is said that politics and religion do not mix, it obviously does 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”.
 
I do not understand how on an election platform, a candidate can talk of religion and call them “permissible speeches”. Why should anyone talk of religion in an election rally? What is election? or electoral process? Is it a matter of politics? Or is it a matter of religion? Why do people attend an election meeting? Not for a religious discourse! What is the meaning of the word “propagate” in Art. 25? “Propagate”, for what purpose? How does anyone “propagate” religion without an element of persuasion? Is persuasion not an appeal? Varma J’s opinion does not answer any of these questions. It only assumes that just because a candidate has a fundamental right under Art. 25, he could legitimately exercise the same in an election rally.
 
In fact, the scope of secularism and in particular Art.25 has been elaborately dealt with in S R Bommai and those observations should have the binding effect on Varma J. sitting in a bench of three judges. It is said in S R Bommai : (Per Sawant J) (Para 148).
 
            “One thing which prominently emerges from the above discussion on secularism under our Constitution is that whatever the attitude of the State towards the religion, religious sects and denominations – cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. This is evident from the provisions of the Constitution to which we have made reference above. The State’s tolerance of religion or religions does not made it either a religious or a theocratic State. When the State allows citizens to practise and profess their religions, it does not either explicity or implicity allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life. The latter falls in the exclusive domain of the affairs of the State. This is also clear from sub-section (3) of section 123 of the Representation of the People Act, 1951 which prohibits an appeal by “a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of or appeal to religious symbols.”
 
More elaborately, (Per Ramaswamy J) after explaining that political activities include matters relating to the management of affairs of State and activities pertaining to parties to control those who manage the affairs of a State, it was observed: (Para 187)
 
“Politics in positively secular State is to get over their religion, in other words, in politics a political party should neither invoke religion nor be dependent on it for support or sustenance. Constitution ensures to the individual to protect religion, right to belief of propagate teachings conducive for secular living, later to be controlled by the State for betterment of human life and progress. Positive secularism concerns with such aspects of human life.”
 
Again (at Para 190):
 
“Article 25 inhibits the Government to patronise a particular religion as State religion overtly or covertly. Political party is, therefore, positively enjoined to maintain neutrality in religious beliefs and prohibit practices derogatory to the Constitution and the laws. Introduction of religion into politics is not merely a negation of the constitutional mandates but also positive violation of the constitution obligation, duty, responsibility and positive prescription of prohibition specifically enjoyed by the Constitution and the R P Act. A political party that seeks to secure power through a religious policy or caste orientation policy disintegrates the people on grounds of religion and caste. It divides the people and disrupts the social structure on grounds of religion and caste which is obnoxious and anathema to the constitutional culture and basic features. Appeal on grounds of religion offends secular democracy.”
 
In other words, it should have been clear to anyone that under our Constitution, there shall be no religion in politics just as there shall be no politics in religion. (Para 196)
 
            “In a secular democracy, in other words a flagrant breach of constitutional features of secular democracy. It is, therefore, imperative that the religion and caste should not be introduced into politics by any political party, association or an individual and it is imperative to prevent religious and caste pollution of politics”. A religious talk, may be a dissertation or a discourse or even hoping for a religious State, on the basis of any so-called exercise of fundamental right u/Article 25, in an election meeting which is a political activity, would undoubtedly pollute politics, and can only be construed as an appeal to vote on the basis of religion.
 
Varma J, thereafter sought to lay down the meaning of “Hindutva” and Hinduism”, all because he wanted to convey that reference to “Hindutva” or “Hinduism” or “mention of any other religion” in an election speech does not bring it within the net of S.123 (3) or (3A) of the Act. As pointed out above, this proposition itself is contrary to the dictum laid down in S R Bommai.
 
Even otherwise there was no justification for going into this exercise for he himself has said that what is relevant is the speech, “the manner in which it was likely to be understood by the audience to which the speech was addressed” and the words are not to be construed in the abstract. If that is so, whatever be the meaning which the speaker wanted to convey would be meaningless inasmuch as no one could say with certainty that the speech would be understood the way the speaker wanted it to be understood.
 
Varma J thereafter summarises “Hindutva”, “Hinduism” in about four pages (printed), almost reminding me of Namboodripad’s case (AIR 1970 SC 2015) in which C J Hidayatullah performed a similar exercise of summarising Communism and dialectical materialism in about four pages – needless to say, both being an exercise in futility. Neither “Hinduism” nor “Communism” or for that matter any philosophy or religion can be confined to a few paragraphs in a legal judgement, for setting out its true meaning and content. After considering one or two judgements of the Constitutional Bench (not any matter arising in an election petition) Varma J observes:
 
“These Constitution Bench decisions, after a detailed discussion, indicate 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 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 to be construed to fall within the prohibition in sub-sections (3) and (3A) of Section 123 of the R.P. Act”.
 
What are the implications of these observations? According to the Learned Judge, what is prohibited u/s 123 (3) & (3A) of the Act is “Hindu Fundamentalism” and not Hindutva as a way of life. The Learned Judge himself has seen the text of the speeches given by Bal Thackeray, in respect of which he could not help “recording our distress at this kind of speeches given by a top leader of a political party.”….. “The offending speeches in the present case discarded the cherished values of our rich cultural heritage and tended to erode the secular polity.”
 
But the question is, how would the Judge categories the speeches given by Bal Thackeray? He has held that the speeches would fall within the scope of S.123 (3) of the Act. Therefore, can it be regarded as speeches delivered by a Hindu fundamentalist? What fundamentalism of the Hindu religion did these speeches sought to convey? If one analyses these speeches made by Bal Thackeray, there is no mention of any fundamental concepts of Hindu state of mind. Neither BJP nor Shiv-Sena can be considered as a party of fundamentalists. On the other hand, in every religious group, there are fundamentalists. They are opposed to any reform in their own religion. But they may not be interested in any election. They may not even bother about the other religious groups. When BJP or Shiv Sena appealed for votes, they did so not on the basis of Hindu fundamentalism, but on the basis of Hindus v/s. Muslims and that this shall be a Hindu State and Muslims and other groups shall only stay here as subordinate citizens. The idea is to maintain a permanent divide so that the majority communities, the communities being divided not on the basis of political or economic ideologies, but on the basis of religion.
 
The Learned Judge concludes:
 
            “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 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 practicing 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 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) or Section 123. It may well be, that 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 criticize the policy of any political party as discriminatory or intolerant”.
 
The most question is why should a candidate speak of Hindutva in an election rally? Why should anyone speak in any election meeting, if not for seeking votes? So also for what purpose does the audience attend an election rally? Is it for learning Hindu way of life? Or to know what a candidate stands for and on what basis he is seeking votes in his favour? If a Hindu candidate says: “I am a Hindu, please vote for me” it becomes an appeal for “a way of life of the Indian people and the Indian Culture”. What about Christianity? Is it a way of life of the Indian people or not? What about Islamic way of life? Is it a part of Indian culture or not? So if what the Learned Judge says is right, candidates belonging to each of these religious denominations can speak of their way of life, necessarily based on their respective religious faiths, beliefs, and texts and seeks votes and that is permissible!
 
The Learned Judge says:
 
            “The fallacy is in the assumption that a speech in which 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.”
 
With respect, the fallacy is in assuming that in an election rally the candidate and the audience would be interested in preaching and learning Indian way of life or Indian Culture or Indian ethos!
 
In Manohar Joshi’s Case, the High Court had indicated its perception of the nature of trial of the election petition as under:
 
            “It must be noted that this Election Petition is not based upon individual acts of Respondent or his Election Agent or any other person with his consent. This petition is based upon the above-mentioned plank and / or policy decision of the Shiv Sena and BJP and the campaigning by the party and the Respondent on the basis of that plank….” Varma J brushed aside this as “an erroneous impression of the High Court which had led to serious errors….” In other words, the plank theory did not appeal to Varma J. The only meaning of this is that whatever be the plank or policy of a party, even if it contains religious appeal, the High Court cannot go into it and the corrupt practice required to be established should be of the candidate, and not of the party to which he belongs. In other words, the party can indulge in any corrupt practice and that cannot be attributed to the candidate. The Learned Judge thinks that such allegations have “no relevance for the pleading and proof of corrupt practice u/sub-section (3) and (3A) of S. 123 of the Act.”
 
If what the learned Judge says is right, it will lead to an absurd situation wherein the political parties can carry on the most vicious campaign and the candidate has just to keep his mouth shut. Neither the party nor the candidate can be held liable for corrupt practice! Ours is a parliamentary democracy and must necessarily function through political parties having distinct policies and programmes. If a policy and programme of a political party is anti-secular, it cannot be said that its candidate will have a different policy and programme. Either he survives by the party or he fails. It is here what the Supreme Court says in S R Bommai becomes relevant: (Para 188)
 
            “For a political party or an organization that seeks to influence the electorates to promote or accomplishing success at an election for governance of parliamentary form of Government, the principles are those embedded in the Directive Principles of the Constitution vis-à-vis the Fundamental Rights and the Fundamental Duties in Part IV A and should abide by the Constitution and promote tolerance, harmony and the spirit of commonness amongst all the people of India transcending religious, linguistic, regional or sectional diversities and to preserve the rich heritage of our composite culture, to develop humanism, spirit of reformation and to abstain form violence. Therefore, the manifesto of a political party should be consistent with these fundamental and basic features of the Constitution, secularism, socio-economic and political justice, fraternity, unity and national integrity”.
 
Referring to S. 123 (3) & (3A) of the Act, the Court said: (Para 189)
 
            “A political party, therefore, should not ignore the fundamental features of the Constitution and the laws. Even its manifesto with all sophistication or felicity of its language, a political party cannot escape constitutional mandate and negates the abiding faith and solemn responsibility and duty undertaken to uphold the Constitution and laws after it was registered under Section 29-A. Equally it / they / should not sabotage the same basic features of the Constitution either influencing the electoral process or working the Constitution or the law. The political party or the political executive securing the governance of the State by securing majority in the legislature through the battle of ballot throughout its tenure by its actions and programmes, it is required to abide by the Constitution and the laws in letter and spirit”.
 
Further, (para 252)
 
            “Political parties, group of persons or individuals who would seek to influence electoral process with a view to come to political power, should abide by the Constitution and the laws including secularism, sovereignty, integrity of the nation. They / he should not mix religion with politics. Religious tolerance and fraternity are basic features and postulates of the Constitution as a scheme for national integration and sectional or religious unity. Programmes or principles evolved by political parties based on religion amounts to recognizing religion as a part of the political governance which the Constitution expressly prohibited. It violates the basic features of the Constitution.”
 
Dealing with political parties indulging in anti-secular activities, the Court said: (Per Jeevan Reddy J Para 310)
 
            “Given the above position, it is clear that if any party or organization seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution it would certainly be guilty of following an unconstitutional course of action. Political parties are formed and exist to capture or share State power. That is their aim. They may be associations of individuals but one cannot ignore the functional relevance. An association of individuals may be devoted to propagation of religion; it would be a cultural organization. They are not aimed at acquiring State power, whereas a political party does. That is one of its main objectives. That is what we mean by saying “functional relevance.” One cannot conceive of a democratic form of Government without the political parties. They are a part of the political system and constitutional scheme. May, they are integral to the governance of a democratic society. If the Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart that is the constitutional injunction. None can say otherwise so long as this Constitution governs this country. Introducing religion into politics is to introduce and impermissible element into body politic and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status, at any rate, a less favourable position. Thus would be plainly antithetical to Articles 14 to 16, 25 and the entire constitutional scheme adumbrated hereinabove. Under our Constitution, no party or organization can simultaneously be a political and a religious party. It has to be either. Same would be the position, if a party or organization acts and / or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party. The fact that a party may be entitled to go to people seeking a mandate for a drastic amendment of the Constitution or its replacement by another Constitution is wholly irrelevant in the context. We do not know how the Constitution can be amended so as to remove secularism from the basic structure of the Constitution. Nor do we know how the present Constitution can be replaced by another; it is enough for us to know that the Constitution does not provide for such a course – that it does not provide for its own demise”.
 
In Manohar Joshi’s case, the Learned Judge did not accept the submission that Bal Thackeray was his agent, because Bal Thackeray was his leader. He said that agency “implies a subservient role of the person to whom consent is given and the authority of the given of the consent to control the actions of the agent. It is difficult to ascribe to an acknowledged leader of the party a role subservient to the candidate set up by that party in as much as the candidate is ordinarily in no position to control the actions of his leader”.
 
It is difficult to appreciate the notion of agency being construed as in a commercial transaction. An agent is the one who acts for another. The leader of a party canvasses for his party candidate, and in law he should be considered as an agent of his candidate. The Learned Judge thinks that the candidate must be able to control the actions of the agent, and then only the notion of agency would apply. But why? If the candidate acts and if someone else acts for him and on his behalf, where the consent is express or implied, the latter becomes an agent of the former. If the candidate is unable to control the act of the agent because the agent is the leader, the consent does not stand vitiated. He is still his agent and not a stranger.
 
            The Learned Judge was construing S.100 (1) (b) & 100 (1) (d) of the Act: The relevant provisions are as under:
 
            “(1) Grounds for declaring election to be void – (1) Subject to the provisions of sub-section (2) if the High Court is of the opinion—
 
(a)        …
 
(b)        that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent.
 
(c)         …
 
(d)        that the result of the election, in so far as it concerns a returned candidate has been materially affected –
 

1. …

1. by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent.

1. …

1. …

 
(2) If in the opinion of the High Court, a returned candidate has been guilty by an
agent, other than his election agent, of any corrupt practice but the High Court is satisfied—
 
(a)        that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election agent;
 
(b)        omitted
 
(c)         that he candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
           
(d)        that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void.”
           
            If one analyses the above, it would show that there could be four categories of persons who could be committing corrupt practice: Under Cl. (b),
 
(1)        The candidate:
 
(2)        his election agent;
 
(3)        any other person with the consent of a returned candidate or his election agent; and under Cl. (d) (ii),
 
(4)        and agent other than his election agent.
 
            Significantly, under Cl.(b), the third category of person has not been referred to as “agent”. But he has been referred to as a person who has the consent of the candidate or of his election agent. If any corrupt practice is committed by any of these category of persons under Cl. (b), the liability is absolute and the election is liable to be set aside.
 
However, under Cl. (d) one more category of persons has been mentioned. He has been referred to as an agent, but not the election agent. If this person commits any corrupt practice, and the candidate or his election agent is not guilty of corrupt practice, the candidate gets a chance to say that this agent committed corrupt practice without his consent and contrary to his order and that he took all reasonable steps for preventing the commission of corrupt practice. Further under Cl. (d), the election petitioner has to prove that the result of the election has been materially affected by the act of such an agent.
 
            What the learned Judge did was that Bal Thackeray at best would fall within the scope of Cl. (d) (ii), but the petitioner has not pleaded or proved that the result was materially affected by the speech of Bal Thackeray.
 
            Therefore, the question is, in which category, the leader of a political party could be placed under these provisions. Certainly, he would not come under Cl. (d) (ii) because the candidate would not be able to order him not to commit corrupt practice nor would be able to take any step reasonable or otherwise, to prevent the leader from committing any corrupt practice. Similarly, when a leader himself canvasses for a candidate or for his party, there can be no question of pleading and proving that the results were materially affected by the presence of such a leader. That is the natural consequence of any campaign when the leader himself comes to the field for canvassing.
 
            Clause (d) (ii) applies to such an agent who is not a regular campaigner. He could be a person from amongst the audience who is requested to speak and if he transgresses his limits, he can be asked to stop and all steps can be taken to see that he does not indulge in any corrupt practice. Such a person could be someone who is influential in the locality and his help is sought, but who can always be controlled from going beyond certain limits. That is why in such a situation, the candidate gets a chance to prove that he was not responsible for the corrupt practice and that he had done his best to prevent such acts. It is natural that in such a situation, the petitioner knows that even if the returned candidate has not committed corrupt practice, it was that other agent who has committed corrupt practice, and because of the acts of that other agent, the returned candidate could win and the results were materially affected. Such a situation would not arise where the leader himself canvasses for his party candidate.
 
            Analysed this way, which appears to be the natural meaning of C. (d)(ii) and sub-clause (2), Bal Thackeray would fall within the scope of the third category of persons mentioned under Cl.(b). He is that other person, not an agent, and the consent is express or implied. If he indulges in corrupt practice for getting his candidate elected, and the candidate is unseated, he has to thank himself for the same.
 
            Any other construction of these provisions would result in such an illogical and irrational situation, that the leader of a political party can indulge in all sorts of corrupt practice for and on behalf of his party candidate while the candidate himself remains a silent approver of what his leader does, and the election remains valid. In other words, according to Varma J, the party plank and the party leader remain above the law. The Learned Judge says:
 
            “Thus even if the acknowledge leaders of a party have committed any corrupt practice which results in benefit to the returned candidate then on proof of the benefit having materially affected the election result in favour of the candidate, his election would be set aside on the ground under Section 100 (1) (d) (ii) of the R P Act.”
 
            Where is the question of proving that a leader’s action has materially benefited his party candidate? In every election that is the natural consequence of a leader supporting his candidate. He is there to see that his candidate wins. With respect, a leader of a political party would fall, not under Cl. (d) (ii), but under Cl. (b).
 
            It is unfortunate that, in effect, the two judgements tend to side track all that has been said on secularism in S R Bommai. Secularism betrayed is democracy denied, and rule of religion is no substitute for rule of law.
 
(This article was earlier published by the author and has been shared with Sabrangindia.in for re-publication)
 

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What happened in Gujarat was nothing but fraud — fraud on law. It was a farce of a trial. The investigation was deliberately dishonest and faulty, and perfunctory. The public prosecutor appears to have "acted more as a defence counsel" than as a genuine prosecutor. The court in turn appeared to be "a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice." It was an "over-hasty, stage-managed, tailored" partisan trial. The State remained indifferent, knowing as we do that the post-Godhra carnage in Gujarat was an organised crime perpetuated by the chief minister and his government.
 

Unfortunately, the high court did not understand the gravity of the situation. As the Supreme Court says: "The entire approach of the high court suffers from serious infirmities, its conclusions lopsided, and lacks proper or judicious application of mind." Even with regard to the affidavits filed for adducing additional evidence, the high court’s conclusions did "not appear to be correct and seem to suffer from judicial obstinacy and avowed determination to reject it."
 

In this background, the Supreme Court rightly observed: "The case on hand is without parallel" and no comparison can be made to any other case where re-trials might have been sought. This case stands on its own, as an exemplary one, "special of its kind, necessary to prevent its recurrence."
 

The Supreme Court had no choice but to transfer the case to another state with specified guidelines to guarantee a fair trial – fair to the accused, fair to the victim, and fair to society. Some could still question how this new trial could be fair to the accused. The Supreme Court has already answered that: "…if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on legal process and the resultant decisions of courts – coram non judis and non est." – Fraud vitiates everything and there can be no right rooted in fraud.
 

The question is, what the Court should do with the other cases where there can be no hope of getting justice, particularly to the victims, if they are allowed to be tried in Gujarat? It is the same investigating agency, it is the same prosecutors, it is the same judicial administration which is willing to be "a silent spectator, mute to the manipulations" of the prosecutor, the accused and the conniving State agencies. Logically, all these cases will have to be transferred to other states, inasmuch as, even after the apex court judgement, there is no real expression of any remorse or contrition. Nor is there any move from the Central Government to initiate any action to have the state government removed.
 

It is apparent that an important wing of the administration of justice – particularly the criminal justice system has failed in Gujarat, and it can legitimately be said that the state government is not run in accordance with the provisions of the Constitution.
 

The larger question is what should be done if such carnages/riots take place in other states, or even in Gujarat, again, polarising the administration on the side of the majority as against the minority victims? It has happened in the past, in many states. Wherever communal riots have taken place, as between two communities, in any state, the police have shown a tendency to be on the side of the majority community. This has resulted in partisan investigation, non-registration of genuine complaints, false arrests allowing the real culprits to go scot-free, ending with tailor-made trials where no justice is done to the victims.
 

This has happened in Bangalore (1991 riots on Cauvery River verdict between Kannadigas and Tamilians), in Bombay (1992-93, after the Babri Masjid demolition) and in Delhi (1984, attacks against Sikhs). In all these places and elsewhere where such riots had taken place, there has been no conviction of any of the majority community members or of the aggressors. Gujarat is an extreme case where the whole administration, including a part of the judicial administration has been saffronised, much before the Godhra incident. Therefore, there can be no hope of getting any fair or impartial administration of justice in such situations.
 

It is precisely for such reasons that we (the Concerned Citizens’ Tribunal’s Report: Crime Against Humanity, Gujarat 2002) had suggested the need to establish a Standing National Crimes Tribunal to deal with all cases of (1) Crimes against humanity, pogroms, (2) Offences in the nature of genocide, (3) Cases of mass violence and genocide, (4) Cases of riots and incidents where there is large-scale destruction of lives and property, including caste, religious, linguistic, regional, ethnic and racial violence.
 

We suggested that this tribunal should be an independent body with persons having judicial and legal background and experience, with powers to investigate offences through its own investigating agency. The tribunal will have the right to take cognisance of crimes as mentioned above, as soon as they occur and will have the power to arrest, try, and punish the accused as well as to compensate and rehabilitate the victims and their dependants.
 

The judgement of the Supreme Court in the Best Bakery case and perhaps similar verdicts in other cases, must necessarily lead to the establishment of such an independent tribunal. That is the only way for "the restoration of the primacy of citizens’ rights against the indifference and arbitrariness of state apparatuses" (The Hindu, April 14, 2004). It is hoped that the Supreme Court will make a recommendation to the government of India to appoint statutorily such a tribunal.
 

(Justice H. Suresh is a former judge of the Mumbai high court).

Archived from Communalism Combat, April-May 2004  Year 10   No. 97, Judgement 1

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The Constitution is under attack not externally, but from within. The Indian State is under the administration of those who have no regard for the values enshrined in the Constitution. Every institution under the Constitution is being subverted  and maligned. The executive today is a saffronised executive with no respect for the secular ideals found in the Constitution. The Prime Minister and his ministerial colleagues, who have taken oath to protect the Constitution have no compunction in periodically reaffirming their allegiance to the Rashtriya Swayamsevak Sangh (RSS) with an oath which says: “I must solemnly take this oath, that I become a member of the RSS in order to achieve all–round greatness of Bharatvarsha by fostering the growth of my sacred Hindu religion, Hindu society and Hindu culture”… This is the prayer that every member, pracharak of the Sangh utters with reverence:

“Affectionate Motherland,
I eternally bow to you,
O Land of Hindus,
You have reared me in comfort..,
O God Almighty,
We the integral part of
Hindu Rashtra,
Salute you in reverence,
For your cause have we girded up our  
loins,
Give us your blessing
For its accomplishments.”

The domination of the RSS over the Indian executive is complete, with all the important portfolios retained by them, and small crumbs of no significance distributed amongst the BJP’s allies whose sole, albeit unholy, objective is to simply hang on to power. Constitutionally, the President is the executive head.  However, with the appointment of APJ Abdul Kalam they have succeeded in installing a very pliable President who has neither political acumen nor constitutional knowledge.
The next is the assault on Parliament. With a Shiv Sena man as Speaker in the Lok Sabha and a sangh parivar man as vice-president chairing the Rajya Sabha, the takeover is almost complete. Thus, the two wings of the government — the executive and the legislature — are under the leadership of those who have no faith in the Constitution.

What about the judiciary? It is difficult to imagine that the government is not doing anything to saffronise the judiciary. When  attempts at saffronisation of the bureaucracy have been so blatant, attempts to infiltrate the judiciary with men and women who are ideologically opposed to the Indian Constitution will not lag far behind.

At the lower level, the judiciary is dependent on the government whichever be the party in power. At the higher level, ie, at the level of the High Court and Supreme Court judges there is greater independence. But there is no transparency in the selection of judges. In any event, unfortunately, a commitment to Constitutional values neither is nor has governed the criteria for selection of judges. As Justice VR Krishna Iyer says: “The social justice perspective, a people–oriented credential, secular socialist essentials are frequently alien to the selection process of the brothers on the bench.”

For all we know, some of the the appointments to the bench could be primary members of the RSS who were appointed as judges later on. It is no wonder then that a former chief justice of a state high court has now become governor in a BJP–ruled state, the only apparent reason for his appointment being his close association with the VHP. This is in line with the perceptible policy of the government to appoint RSS pracharaks as governors in the states, yet another institution under the Constitution that is being manipulated and eroded.

When the Babri Masjid was about to be demolished, the only persons who could have stopped the demolition were the then Prime Minister Narsimha Rao and Justice Venkatachaliah, the judge who headed the Supreme Court bench before whom the matter was pending. Rao connived in the crime. Justice Venkatachaliah was naïve enough to accept an undertaking from Kalyan Singh, then chief minister of UP, which he never intended to keep.

After the masjid was demolished in full public view, resulting in the death of thousands of innocent people and large scale destruction of property in the riots that followed all over the country, there was hardly any feeling of righteous indignation on the benches of the Supreme Court. A routine contempt of court notice was issued  against Kalyan Singh. In response, Kalyan Singh paraded the corridors of the Supreme Court and his token punishment lasted only until the court rose for the day.
In sharp contrast, the innocuous tone and tenor of an affidavit filed by Arunadhati Roy was sufficient to invoke a severe punishment from the Supreme Court. Later on, another judge, Justice JS Verma of the Supreme Court, in what is now known as the Ayodhya verdict, observed that the demolition of the Babri Masjid was the act of certain mischievous “miscreants who cannot be identified” when the whole world knew who were the perpetrators of this crime.

It is a sad reflection on the Indian judiciary that when on occasions it has been called upon to deal with ‘secularism’ as enshrined in our Constitution, it has dithered, it has displayed unbecoming traits leaning in favour of the majority as against the minority community.

Soon after the demolition of the Babri Masjid, someone installed a ramshackle Ram Mandir on the site of the demolished mosque and sought protection for the same from the court. It was patently an illegal structure put up by “miscreants” who were plainly trespassers in law. Yet, Justice Tilhari, who in his wisdom found that Lord Rama has a place in the Indian Constitution, gave protection to the structure and allowed worship and darshan for the Hindus (Vishwa Hindu Adhivakta Sangh vs. Union of India — Judgement delivered on 1-1-1993).

A special leave petition filed against this judgement was summarily dismissed by the Supreme Court. The government enacted an ordinance on January 7, 1993, the sole object of which was to permanently establish and legitmise the  make shift Ram Mandir. When this ordinance (which later became an Act) was challenged in the Supreme Court, the majority judges (Judgement of Verma J.) upheld this very provision in the law (Section 7), which sought to maintain the status quo as on January 7, 1993, on the specious plea that in the demolition of the Babri Masjid, it was the Hindus who suffered their rights of worship which they were exercising from December, 1949  until December 6, 1992.
Further, Justice Verma observed that the “freeze enacted in Section 7(2) only enabled them to exercise “a lesser right of worship for the Hindu devotees” and as such the law “appears to be reasonable and just.” The learned judges conveniently forgot that in December 1949, the idols were forcibly installed within the premises of the Babri Masjid, after which action, they were sustained there through several interim orders. The minority judges on that bench of the Supreme Court rightly observed, “that the Act is skewed to favour one religion against another” (Bharucha J.).

Thus the issue of Ramjanma-bhoomi was kept alive by an order of the Supreme Court! It is the judiciary that kept this issue alive since 1949, by passing a series of orders which only favoured the Hindu community over the other. This trend set by the judiciary was to be exploited later by the communal elements in political parties, and to be hijacked and monopolised as their exclusive agenda by the sangh parivar, since about 1980.

It is a sad reflection on the Indian judiciary that when on occasions it has been called upon to deal with “secularism” as enshrined in our Constitution, it has dithered, it has displayed unbecoming traits leaning in favour of the majority as against minority community, reminding us unwittingly of what Justice Oliver Wendell Homes once said: behind every judgement lies an “inarticulate major premise.” However, their subjective conscience should not have allowed them to commit a breach of their own oath on the Constitution.

The only exception was the judgement in the case of SR Bommai (1994) wherein it has been said: “Article 25 inhibits the government to patronise a particular religion as State religion overtly or covertly. A political party is therefore positively enjoined to maintain neutrality in religious beliefs and prohibit practices derogatory to the Constitution and the laws… A political party that seeks to secure power through a religious policy or caste orientation policy, disintegrates the people on grounds of religion and caste” …

In this case the court took into account the manifesto of the BJP which stated that the “BJP firmly believes that construction of Sri Ram Mandir at Janmasthan is a symbol of the vindication of our cultural heritage and national self respect… And (that) party is committed to build Sri Ram Mandir at Janmasthan by relocating superimposed Babri structure …”.

The court also took into account that the leaders of the BJP had consistently made speeches to the same effect and that some of the chief ministers and ministers belonged to RSS and that the ministers had exhorted people to participate in the kar seva that led to the demolition. The court observed that all these materials were sufficient to hold that the state governments (which were dismissed following the demolition of the Babri Masjid) were not run in accordance with the provisions of the Constitution.

Yet this judgement was not even referred to by the Supreme Court when the election of the Shiv Sena leader Manohar Joshi (former chief minister of Maharashtra, and the present Speaker of the Lok Sabha)  was upheld. In an election rally Joshi had sought votes stating that the first Hindu state will be established in Maharashtra with the Sena–BJP victory. The latter judgement gives the distinct impression that canvassing on the basis of Hindutva was permissible since “Hindutva is only a way of life.” What about Christianity? Is it not a way of life? Is Islam not a way of life? Thus, Hindutva got judicial reprieve and thereby the government at the Centre and in Gujarat today gets legitimacy.

In the 1992–93 riots in Bombay, none could doubt that the worst culprit was Bal Thackeray who had repeatedly incited the mobs through his mouthpiece, Saamna. Since the the Congress government was not taking any action against the Sena leader, two concerned citizens moved the Bombay High Court with all the newspaper articles and adequate documentation seeking direction to sanction prosecution of Thackeray. The two judges who heard the petition simply turned down the plea on the basis that past wounds and atrocities should be swallowed and forgotten because of apparent peace in the city. Worse still,  the division bench of the Bombay High Court held that the provocative exhortations by Thackeray to his cadres on January 9, 1993 were not against all Muslims “but only against anti-national Muslims.”

What is even more regrettable is that the SLP filed against the judgement in the Supreme Court was summarily rejected, giving sanction to, ‘kill, loot and forget!’ Much later, when Bal Thackeray was arrested, a lower Court in Mumbai released him on a technicality and the Bombay High Court has had no time in the last three years to hear a review petition against the said order.

 While the bomb blasts cases have been going on, almost on a day–to–day basis for the past several years,  the judiciary has simply been postponing the case against those accused for the Babri Masjid demolition (which include LK Advani & Co.) for the last nine years!

On  December 12, 1992, Narasimha Rao, by a notification, banned the RSS, the VHP and the Bajrang Dal under the Unlawful Activities (Prevention) Act, 1967. This ban had to be confirmed by a judicial tribunal under the Act. Justice PK Bahri, a retired judge of the Delhi High Court who sat on the tribunal confirmed the ban on the VHP but quashed the ban against the RSS and the Bajrang Dal. He however spoke of  “the laudable objects pursued by VHP.” So the Ram Janmabhoomi movement became a laudable act by virtue of a judicial pronouncement.

The issue of Ramjanma–bhoomi was kept alive by an order of the Supreme Court! It is the judiciary that kept this issue alive since 1949, by passing a series of orders which only favoured the Hindu community over the other.

What the judge said about the RSS discloses his “major inarticulate premise.” According to him: “The word “Hindu” has been firmly imprinted in our national mind, was radiantly reflected in our freedom struggle against the British as well. The fight was essentially for certain ideals associated with the word Hindu, and not for mere political independence or economic rights.” No wonder then that he came to the conclusion that the accusation that the RSS is opposed to Muslims is wrong. The question is, how did the then Prime Minister select such a person to head a judicial tribunal?

When Graham Staines and his two innocent children were so tragically burnt to death on the night of January 22/23, 1999 by Dara Singh in association with members of the Bajrang Dal, the government promptly appointed Justice Wadhwa, a sitting judge of the Supreme Court to hold an inquiry, inter alia on “the role, if any, played by any…organization…or individual in connection with” the killings. Within days, before the commission could begin it’s work, LK Advani, as Union home minister had granted a character certificate to both the VHP and the BD, on the floor of the Lok Sabha. He said that he knew these organisations well and they were incapable of criminal acts. What happened thereafter is well known.

Despite the investigations and depositions of police officers and counsel before the commission that revealed the clear links between Dara Singh and the sangh parivar outfits, the learned judge was in a great hurry, despite the submissions made by the commission’s advocate, Gopala Subramaniam to nullify the link. Justice Wadhwa categorically held that Dara Singh alone was responsible and that no “authority or organisation was behind the gruesome killings.” Thus Advani stands vindicated.

Fortunately for India and the founding principles of the Indian State under the Indian Constitution, the judiciary has not been entirely influenced, ideologically. It remains, with all these major deviations, the most secular institution under the Constitution, as compared to the other two. It is still the judiciary and the judiciary alone can resuscitate constitutional values to their original intent. However, we need to be warned of the subtle, steady and perceptible erosion that has been, and is, taking place at all levels and within all constitutional and democratic institutions, including the judiciary. One of the main causes for anxiety is the lack of transparency in the matter of selection and appointment of judges. Coupled with this is the lure that is offered to judges who are about to retire-with commissions and tribunals all legislatively sanctified as reserved for retired judges as also seats in the Rajya Sabha.

Added to this list is now the governor’s post. Even when there are no constitutional or statutory commissions to head that retired judges can be appointed to, the Government can always, by its executive orders create one like the recent Constitutional Review Commission — the sole purpose of which was to make use of retired judges to create doubts about the Constitution, in the minds of the people.                

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Your lordships, beware!

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“To all minorities in India, the Bombay High Court and Supreme Court have by their conduct, denied any guarantee that secularism is the basic feature of Indian laws.”

The same Bombay High Court, through several judgements delivered in the past eight years (including one delivered by me) has set aside the election of several Shiv Sena MLAs on grounds of Sections 123(3) and 123(3)(a) of the Representation of People's Act (RPA). These petitions, among other evidence, relied upon the speeches made by Bal Thackeray during electioneering, raving about "anti-national Muslims". Then the High Court saw fit to set aside the election invoking these sections.

Section 123(3) (a) of the RPA coincides exactly with Section 153(a) of the Indian Penal Code. This special leave petition by D'Souza has also cited editorials from Saamna that clearly violate this section. Why has the High Court deviated from a line of thinking adopted consistently earlier? And the Supreme Court going along with this? I find it particularly disturbing because one can notice a trend — the majority judgement in the Ayodhya case that was blatantly perverse, now this.   
 

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