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PETITIONER: EBRAHIM SULAIMAN SAIT

       Vs.

RESPONDENT: M. C. MUHAMMAD AND ANR.

DATE OF JUDGMENT07/11/1979

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. SHINGAL, P.N.

CITATION:  1980 AIR  354            1980 SCR  (1)1148  1980 SCC  (1) 398  CITATOR INFO :  RF         1988 SC 775  (16)

ACT:      Corrupl practice-Full text of the alleged speech of the returned candidate  to show  that his election speech was an attempt to  promote feelings  of  enmity  between  different classes of  citizens of  India on  grounds of  religion  not reported by  the Press, but admitted by him in evidence that "the reported’s  version of  the speech  does more  or  less tally"-Reliability in  evidence regarding  corrupt  practice within the  meaning of Section 123(3A) of the Representation of the People Act 1951.      Representation of the People Act, 1951, Section 123(3A) scope and  application of-Provisions  of Section 125 are not relevant to  ascertain the  scope and application of Section 123(3A) of the Act.      Representation  of   the  People   Act,  1951,  Section 123(3A),  whether  violative  of  Article  19(1)(a)  of  the Constitution.

HEADNOTE:      The election  of the  appellant to  Lok Sabha  from the Manjeri Parliamentary  Constituency in  Kerala was  declared void by  the High  Court of  Kerala on  an election petition presented on  May 3, 1977 by the first respondent who was an elector in that Constituency on the ground that the returned candidate was  guilty of  Corrupt practice mentioned in sub- section (3A)  of Section  123 of  the Representation  of the People  Act,  1951.  The  allegation  was  that  during  the election campaign  the appellant made a speech in English at a place  called Pullickal within the said constituency and a report of  this speech translated into Malayalam appeared in the local  daily CHANDRIKA  in its  issue of  March 17, 1977 which, fell  within the  mischief of  Section 123(3A) of the Act.      Allowing the appeal, the Court, ^      HELD :  1. Even  though the  full text  of the  alleged speech of  the returned  candidate to show that his election speech was  an attempt to promote feelings of enmity between different  classes  of  citizens  of  India  on  grounds  of religion was  not reported  by the  Press, the  press report

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could be  relied on  when  there  was  not  even  a  distant suggestion that  for want of production of the entire speech such report  should not  be relied  on and more particularly when, as  in the  instant case, the appellant himself admits that it  was not  possible for him at "this distance of time to recall  what exactly  he had  stated in  speech" and that reporter’s version  of the speech "does more or less tally". [1151B-C]      2. The  provisions of  Section 125  are not relevant to ascertain the  scope and  application of  Section 123(3A) of the Representation  of the  People Act.  It is true that the act that  is called a corrupt practice in Section 123(3A) is also what  constitutes an  electoral offence  under  section 125, but to attract section 123 (3A) the act must be done by the candidate or his agent or any 1149 other person  with the consent of the candidate or his agent and for the furtherance of the election of that candidate or for prejudicially  affecting the  election of any candidate, but under section 125 any person is punishable who is guilty of such  an act  and the motive behind the act is not stated to be  an ingredient  of the  offence. Section  123(3A)  and section 125 need not be read together to ascertain the scope and effect of Section 123(3A). [1152D-F]      Kedar Nath Singh v. State of Bihar, [1962] Suppl. 2 SCR 769, distinguished.      3. Section  123(3A) of the Representation of the People Act, 1951  is not  violative  of  Article  19(1)(a)  of  the Constitution. [1153A]      Jamuna Prasad  Mukhariya and  Ors. v.  Lachhi  Ram  and Ors., [1955] 1 SCR 608; relied on.      4. A speech, though its immediate target is a political party, may  yet be  such as to promote feelings of enmity or hatred between  different classes  of citizens.  It  is  the likely effect  of the  speech on  the voters  that has to be considered.[1153H, 1154A]      5. To  come under  the purview  of  the  provisions  of Section 123(3A),  the fact  that the election petitioner and the returned  candidate belonged  to the  same  religion  is immaterial. [1154A-B]      Kultar Singh  v.  Mukhtiar  Singh,  [1964]  7  SCR  790 applied.      6. Truth  is not  an answer  to  a  charge  of  corrupt practice under section 123 (3A); what is relevant is whether the speech  promoted or sought to promote feelings of enmity or hatred  as mentioned  in that  provision. If  it is found that it  was so, then it is immaterial whether what was said was based on facts or not. [1154F-G]      In the  instant case, it cannot be said that the speech falls within  the mischief of section 123(3A) of the Act. No doubt, the  tone of  the speech  was communal,  but in  this country  communal   parties  are   allowed  to  function  in politics. The  law also does not place any bar on describing a party  as irreligious. The speech sought to criticize only the wrong  policy  of  the  Muslim  League  (opposition)  in aligning with  parties that  were responsible for atrocities against  the   Muslims  and   not  just   to  emphasise  the atrocities. [1155B, 1156A-B]      Kanti  Prasad   Jayashankar  Yagnik   v.  Purshottamdas Ranchhoddas Patel and Ors., [1969] 3 SCR 400; referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal No. 11 of

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1978.      From the Judgment and Order dated 6-12-77 of the Kerala High Court in Election Petition No. 18/77.      F. S. Nariman, Anil B. Diwan, K. J. John, A. N. Haksar, Shakil Ahmed and Manzil Kumar for the Appellant.      P. Govindan Nair and N. Sudhakaran for the Respondent.      The Judgment of the Court was delivered by      GUPTA, J.-This  is an  appeal under section 116A of the Representation of the People Act, 1951. 1150      The election  of the  appellant to  Lok Sabha  from the Manjeri Parliamentary  constituency in  Kerala was  declared void by the High Court of Kerala at Ernakulam on an election petition presented  on May  3, 1977  by the first respondent who was  an elector  in that constituency on the ground that the  returned  candidate  was  guilty  of  corrupt  practice mentioned in sub-section (3A) of section 123 of the Act. The appellant was  a candidate  of the Muslim League; the second respondent before  us contested the election as a nominee of a dissident  group of the Muslim League described as "Muslim League (Opposition)" supported by, as stated in the election petition, "Janata Party and Marxist Party".      Section 123 (3A) reads :           "123. Corrupt  practices.-The following  shall  be      deemed to be corrupt practices for the purposes of this      Act:-              x              x             x           (3A) The  promotion of,  or  attempt  to  promote,      feelings of  enmity or hatred between different classes      of the  citizens of India on grounds of religion, race,      caste, community,  or language,  by a  candidate or his      agent or  any  other  person  with  the  consent  of  a      candidate or  his election agent for the furtherance of      the prospects  of the  election of  that candidate  for      prejudicially affecting the election of any candidate." It is  said that  during the election campaign the appellant made a  speech in English at a place called Pullickal within the said constituency and a report of this speech translated into Malayalam  appeared in the local daily CHANDRIKA in its issue of  March 17,  1977 which, it is alleged, falls within the mischief  of  section  123(3A).  The  election  petition contains several  other allegations  but as  the decision of the High  Court is  based on  this ground  only, it  is  not necessary to refer to them. As already stated, the report of the speech  (Ext. P-6)  is a translated version in Malayalam of the substance of the speech delivered in English.      Mr. Nariman  appearing for the appellant contended that as the  full text  of the speech was not available, it would be  unsafe  to  draw  any  conclusion  from  the  speech  as reported. This  contention which  was also raised before the High Court  is in  our opinion,  adequately answered  in the impugned judgment. The High Court says:           "It is  true that  Ext. P-6  does not  purport  to      contain the full speech, but the important aspect which      has to  be noted  is that no contention has been raised      in the written statement 1151      to the  effect that  there were  other portions  in the      speech of the first respondent which mitigated the evil      contained in  Ext. P-6....When  the 1st respondent gave      evidence  as   R.W.1  there  was  not  even  a  distant      suggestion that  for want  of production  of the entire      speech Ext. P-6 could not be relied on. Again, when the      petitioner gave evidence as P.W.1 no question was asked      to him  regarding the  other matters, if any, spoken by

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    the first respondent."      The first  respondent in  High Court  is the  appellant before us.  In this affidavit answering the allegations made in the  election petition,  the appellant admits that though it was  not possible  for him  "at this  distance of time to recall" what  exactly he  had stated  in  the  speech,  "the reporter’s version  of the  speech does  more or less tally" with the views expressed by the appellant in the meeting. We are therefore unable to agree that the report of the speech, Ext. P-6, cannot be relied on.      The speech as reported in CHANDRIKA is as follows:           "The Indian Union Muslim League President Sulaiman      Sait said  at Pullickal  today that  the  Society  will      never forgive  the anti-religious  league people. It is      because these  people had helped the Jansangh which had      killed  many   Muslims  in   Northern  India   and   at      Tellicherry and  had burnt  the sacred  mosques.  There      people have  also been leading the poor Muslims towards      the  camp   of  communal  reactionaries  and  therefore      Society can never forgive them.           He said  that these  anti-religious people were by      spreading lies  and  false  propaganda  blackening  the      faces of the leaders and giving away the secrets of our      society to  marxists and the Hindu leaders. He reminded      the anti-religious  league that by doing this they were      destroying that  institution which  was fed and brought      up by  Marhyum Khaede  Millat Ismail  Sahib and  Bafaki      Thangal.           He continued  that Janata  Party, which  is formed      under the  guidance of  Jansangh is an orphanage of all      those political leaders who did not secure any seats or      who had  separated from  their  original  party.  These      parties, he  said, will  not  be  allowed  to  see  the      assembly or  parliament. He made it very clear that the      anti-religious parties must not entertain the fat hopes      of securing  the votes of any Muslim, in whose head the      Islam’s blood was flowing.           Janab Sait  Sahib was addressing a large gathering      at the  public meeting  of the  united  front  held  at      Pullickal. The 1152      meeting  was   presided  over  by  Cherukavu  Panchayat      President P.  P. Abdul  Gafoor Moulavi. The meeting was      inaugurated by P. P. Ummarkoya." Mr. Nariman submitted that it was necessary to ascertain the true scope  and effect  of sub-section  (3A) of  section 123 before  considering  whether  the  speech  fell  within  the mischief of that sub-section and for that purpose, according to Mr.  Nariman, section  123(3A) must  be read with section 125 of the Act. Part VII of the Representation of the People Act,  1951  deals  with  "Corrupt  Practices  and  Electoral Offences". Section  123 is  in Chapter  I of  Part VII which catalogues the  Corrupt Practices  and  section  125  is  in chapter III of that Part which lists the Electoral Offences. Section 125 provides:           "125.  Promoting   enmity   between   classes   in      connection with  election.-Any person who in connection      with an election under this Act promotes or attempts to      promote on  grounds of religion, race, caste, community      or language,  feelings of  enmity  or  hatred,  between      different classes  of the  citizens of  India shall  be      punishable with  imprisonment  for  a  term  which  may      extend to three years, or with fine, or with both."      It is  true that  the act  that  is  called  a  corrupt practice in  section 123(3A)  is also  what  constitutes  an

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electoral offence  under section 125 but to attract 123 (3A) the act  must be  done by  the candidate or his agent or any other person  with the consent of the candidate or his agent and for the furtherance of the election of that candidate or for prejudicially  affecting the  election of any candidate, but under section 125 any person is punishable who is guilty of such  an act  and the motive behind the act is not stated to be  an ingredient  of the  offence. We  do not  find  any reason why  the two provisions, section 123 (3A) and section 125, must be read together to ascertain the scope and effect of section 123(3A). Mr. Nariman’s contention is that reading section 123(3A)  in the  light of section 125 we should hold that incitement to violence or likelihood of public disorder is one  of the requirement of the corrupt practice mentioned in section  123(3A) and  that in the absence of any evidence in this  case on  that aspect,  the corrupt practice alleged against  the   appellant  cannot   be  said   to  have  been established. Mr.  Nariman referred  to Kedar  Nath Singh  v. State of  Bihar(1) in  support of  his contention.  In Kedar Nath’s case,  in order  to save  section 124A  of the Indian Penal Code,  (which makes  sedition an  offence) from  being questioned as infringing the freedom of speech and 1153 expression  guaranteed   by  the  Constitution,  this  Court limited the  application of  the provision to acts involving intention or  tendency to create disorder, or disturbance of law and  order,  or  incitement  to  violence.  Whether  the electoral offence mentioned in section 125 of the Act should be read as requiring a similar ingredient does not arise for consideration in this case; in our opinion the provisions of section 125  are not  relevant to  ascertain the  scope  and application of  section 123  (3A).  As  to  whether  section 123(3A) can  be impugned  on the  ground  that  it  violates Article 19(1)(a)  of the Constitution, the question has been answered in Jumuna Prasad Mukhariya and others v. Lachhi Ram and  others.(1)  In  that  case  this  Court  overruled  the contention  that   section  123(5)   and   124(5)   of   the Representation of  the People  Act, 1951,  as the provisions stood at the time, were ultra vires Articles 19(1)(a) of the Constitution. Section  124(5) which  made "systematic appeal to vote  or refrain  from voting  on grounds of caste, race, community or religion" a ’minor’ corrupt practice is similar to section  123(3A) of  the Act  as it  stands now.  Bose J. speaking for  the Court  in Jumuna  Prasad’s case  observed: "These laws  do not  stop a  man from  speaking. They merely prescribe conditions  which must  be observed if he wants to enter Parliament.  The right  to stand  as a  candidate  and contest an  election is  not a  common law  right. It  is  a special right  created by  statute and can only be exercised on the  conditions laid down by the statute. The Fundamental Rights chapter  has no  bearing on a right like this created by statute.  The appellants  have no fundamental right to be elected members  of Parliament.  If they want that they must observe the rules. If they prefer to exercise their right of free speech  outside these  rules, the  impugned sections do not stop them. We hold that these sections are intra vires." We are  therefore  unable  to  accept  the  construction  of section 123(3A) as suggested by Mr. Nariman.      Mr. Nariman’s  next contention  was  that  a  political party could  not be  described as a "class" in the sense the expression "classes  of the citizens of India" has been used in section  123(3A), that whatever the appellant had said in his speech  was directed  against a  political party. Muslim League (Opposition),  and therefore  the speech did not fall within the  mischief of  that provision.  We do  not find it

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necessary to consider whether a political party is a ’class’ within the  meaning of  section 123(3A).  The  question  for decision is  whether the  speech delivered  by the appellant promoted or  attempted to  promote  feelings  of  enmity  or hatred between different classes of the citizens of India on the ground  of religion.  A  speech,  though  its  immediate target is  a political  party, may yet be such as to promote feelings of enmity or 1154 hatred between  different classes  of citizens.  It  is  the likely effect  of the  speech of  the voters  that has to be considered. We  also find no substance in another contention urged by  Mr. Nariman  that section 123(3A) was inapplicable to this  case because the appellant and the candidate of the Muslim League  (Opposition) were both Muslims. This Court in Kultar Singh  v.  Mukhtiar  Singh(1)  held  that  a  corrupt practice under  section 123 "can be committed by a candidate by appealing  to the voters to vote for him on the ground if his religion  even though  his rival candidate may belong to the same religion".      The following  portions of  the speech reproduced above have been alleged as objectionable:      The first  paragraph of the speech as reported contains a statement  that the  society will  not forgive  the  anti- religious  League   people,  meaning   the   Muslim   League (Opposition), because  of their  alliance with Jansangh that had killed  many Muslims  in  Northern  India  and  also  at Tellicherry and  had burnt  mosques and, further, that these people had  been driving the poor Muslims to the camp of the communal reactionaries.  In  the  second  paragraph  of  the report, it  is alleged that these anti-religious people were giving away  the secrets  of "our  society" to "Marxists and Hindu leaders".  The third paragraph states that the speaker made it  clear that  these anti-religious  parties must  not entertain the  hope of  securing the  votes of  Muslims  "in whose head  the Islam’s  blood  was  flowing".  Mr.  Nariman submitted that  the allegations  as regards  the killing  of Muslims and  the burning  of mosques were based on facts and he referred  to the report of the Commission of Inquiry that investigated the  facts relating  to the  disturbances which took place  in Tellicherry  in 1971. In our opinion truth is not an  answer to a charge of corrupt practice under section 123(3A); what  is relevant is whether the speech promoted or sought to  promote feelings of enmity or hatred as mentioned in that  provision. If it is found that this was so, then it is immaterial  whether what  was said  was based on facts or not, especially  when in  this  case  the  events  mentioned occurred years ago.      Turning now  to the  speech, the allegations of killing of Muslims  and burning  of mosques appear to have been made against Jansangh  which is  a political  party.  It  is  not claimed that  this is a party whose membership is restricted to  Hindus   only.  The   members  of   the  Muslim   League (Opposition) are described as "anti-religious people" but as held by  this Court  in Kanti  Prasad Jayshanker  Yagnik  v. Purshottamdas Ranchhoddas  Patel and others,(2) the law does not place any bar on 1155 describing a  party as  irreligious. Then  it is  said  that these people  were "giving away" the "secrets" of the Muslim society to "Marxists and the Hindu leaders". It is not clear what was the nature of the "secrets" which were being passed on to  the Hindu  leaders and  to the  Marxists. It is to be noted that  the recipients  of the information were not only the Hindu  leaders but  the Marxists  as  well.  The  speech

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appears to have ended with the assertion expressed in rather high flown  language that  the anti-religious parties had no hopes of  securing the vote of any Muslim "in whose head the Islam’s blood was flowing".      Reading the  speech as a whole it cannot be denied that its tone  is communal,  but in this country communal parties are allowed  to function  in politics. That being so, how an appeal to  the voters, such as the one made in the speech in question,  should  be  viewed  in  the  context  of  Corrupt Practices mentioned  in  the  Act,  has  been  explained  by Gajendragadkar C.J.  speaking for  the Court in Kultar Singh v. Mukhtiar Singh (supra):           "It is  well-known that  there are several parties      in this  country which subscribe to different political      and economic  ideologies, but the membership of them is      either confined  to, or  predominantly held by, members      of particular  communities or religions. So long as law      does not  prohibit the formation of such parties and in      fact recognises  them for  the purpose  of election and      parliamentary life,  it would  be necessary to remember      that an  appeal made by such candidates of such parties      for votes  may, if  successful, lead  to their election      and in  an indirect  way, may conceivably be influenced      by consideration of religion, race, caste, community or      language. This  infirmity cannot  perhaps be avoided so      long  as  parties  are  allowed  to  function  and  are      recognised,   though    their   composition    may   be      predominantly  based   on  membership   of   particular      communities or religion".      To indicate  the effect  of the  speech on the minds of the ordinary  voters, the  election petitioner  examined two witnesses. P.W.  2 and  P.W. 4.  P.W. 2  P. C. Mohammad said that after  listening to the appellant’s speech, "the Muslim voters looked  with hatred at those people who stood against them", but  when questioned  as to  which  sentence  in  the speech attempted  to promote  the  feeling  of  hatred,  the witness referred  to the  first sentence and he himself went on to say that "what the sentence really means is that it is not proper  to unite  with Jansangh". P.W. 4 Hidre also said in the  beginning that  the speech  was "intended to destroy communal harmony",  but he  himself admitted  later  in  his testimony that  the only effect of the speech was that after the meeting 1156 people were  saying that  "the Opposition  League  candidate must be  defeated". It seems to us that the speech sought to criticise the wrong policy of the Muslim League (Opposition) in aligning with parties that were allegedly responsible for atrocities against the Muslims and not just to emphasise the atrocities. In our opinion it cannot be said that the speech falls within  the mischief of section 123(3A) of the Act; we have reached  this  conclusion  keeping  in  mind  the  well established  principle   that  the   allegation  of  corrupt practice must be proved beyond reasonable doubt.      The appeal  is allowed  with  costs  and  the  election petition is dismissed. V.D.K.                                       Appeal allowed. 1157