Justice H Suresh (Retd.) analyses crucial judgements of the Supreme Court of India
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 13th 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 24th 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 24th 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—
(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.
(d) that the result of the election, in so far as it concerns a returned candidate has been materially affected –
- by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent.
(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;
(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)