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PETITIONER: ZIYAUDDIN BURHANUDDIN BUKHARI

       Vs.

RESPONDENT: BRIJMOHAN RAMDASS MEHRA & ORS.

DATE OF JUDGMENT25/04/1975

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH ALAGIRISWAMI, A. UNTWALIA, N.L. KHANNA, HANS RAJ BHAGWATI, P.N.

CITATION:  1975 AIR 1778            1975 SCR  453  1975 SCC  (2) 260  CITATOR INFO :  RF         1976 SC2439  (6,7,9,10)  RF         1977 SC 322  (26)  D          1978 SC 419  (12)  R          1980 SC  31  (8)  D          1986 SC1794  (7)  E&D        1992 SC 504  (31)

ACT: Representation  of  the People Act-Section 123(2), (3)  &  3 (A)-Corrupt  practice-Appeal  on  the  ground  of  religion- Promoting  feelings of hatred and enmity  between  different classes-Amendment of petition-form of affidavit-Vagueness of petition-Evidence Act-Cassettes evidence whether admissible- Order of costs in favour of the respondent.

HEADNOTE: The   appellant  a  candidate  of  Muslim  League   defeated respondent  No. 3 Shauket Chagla, the Congress candidate  in the Maharashtra State in Assembly Election,. Respondent No. 1, a voter filed an Election Petition,  inter alia, alleging that the appellant appealed to the voters  to refrain  from voting for respondent No. 2 on the  ground  of religion and that the appellant promoted feelings of  enmity or hatred between different classes of the citizens of India on grounds of religion. The appellant made the following appeal to the voters in his various election speeches :               (1)Muslim  personal  law was  a  matter  of               religious  faith  for  Muslims  and  that   it               extended to the mode of disposing of bodies of               the  dead.  The voters were told that if  they               voted  for Chagla they would have  to  cremate               the  bodies of their de-ad instead of  burying               them because Chagla had cremated the dead body               of his sister.               (2)   The appellant entreated hi$ audience not               to  vote  for those who  stood  against  their

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             religion.               (3)   Chagla was not true to his religion  and               that the appellant was a true Muslim.               (4)   If Muslim personal law may be considered               a personal matter by Chagla it was  considered               to  be "the law of God" by Muslims  who  would               not tolerate any attempts to amend it as  that               would raise a religious question.               (5)   If  the Congress Government brought  any               amendments in Muslim religious law the  battle               would be fought in every street.               (6)   Chagla advocated intercommunal or inter-               caste marriages and that he wanted a Hindu  to               be a member of the Haj Committee.               (7)   There were references to riots in  which               only Muslims were alleged to have been killed.               (8)   The appellant claimed that he would  die               for  Islam  and  further said  that  "God  has               blessed us that every drop of our blood  would               give birth to thousands of Bukharis."               (9)   "At  the moment we are in such a war  in               which  our  opponent is such a person  who  is               playing   with  our  religious  affairs.    He               considers   us   to  be  a   community   whose               conscience is dead."               (10)"We have not signed any deed of  slavery               for  the  Government.  When we find  that  the               Government  is working against us, our  rights               are  being crushed, our religious affairs  are               being  interfered  with,  then  we  will  rise               openly against it.  We would rise like a  wall               cemented with lead.  Then who would bang  with               this wall, would get his hand broken.  No harm               would be done to us."                                    282               (11)Chagla’s wife Nalini was a Hindu and his               son  was named Ashok.  Chagla used  to  attend               the mosque as well as the temple and he should               be excluded from Muslim localities.               (12)Chagla  was neither a good Hindu  nor  a               true  Muslim so that neither God  nor  Bhagwan               was pleased with him. The  High  Court  allowed the petition  and  set  aside  the election of the appellant.  The High Court awarded costs  of Rs. 12,000 to the first respondent and costs of Rs. 3,000 to the second respondent. In the present statutory appeal the appellant contended               (1)   The  affidavit  filed  by  the  election               petitioner  was  not in proper form  since  it               does  not give the sources of  information  of               the corrupt practices.               (2)   The  High  Court erred  in  not  framing               issue on the vagueness of the petition.               (3)   The  High Court erroneously allowed  the               amendment of the Election petition.               (4)   The High Court ought not to have  relied               on the cassettes of tape records.               (5)   The appellant merely asked the voters to               support  one who opposed any change in  muslim               personal law as against another who wanted  to               change’  ’it.  If change of personal law is  a               secular matter opposition to its change  could               not become an appeal on grounds of religion.               (6)   The  order of costs passed by  the  High               Court was very excessive.

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             (7) The appellant did not get a fair trial. HELD : Our Constitution-makers intended to set up a  Secular Democratic   Republic.   Our  political  history   made   it particularly  necessary  that the basis of  religion,  race, caste,  community,  culture, creed and  language  which  can generate powerful emotions depriving people of their  powers of  rational thought, and action should not be permitted  to be exploited lest the imperative conditions for preservation of  democratic freedoms are disturbed.  Section 123(2),  (3) and  (3A)  were  enacted to  eliminate  from  the  electoral process  appeals  to  those decisive  factors  which  arouse irrational passions that run counter to the basic tenets  of our Constitution.  Due respect for the religious belief  and practices,  race,  creed,  culture  and  language  of  other citizens  is one, of the basic postulates of our  democratic system.  The line has to be drawn by the court between  what is  permissible  and what is prohibited  after  taking  into account the facts and circumstances of each case interpreted in the context in which the statements or acts complained of were/made.   The  court  has  to  determine  the  effect  of statements made by the candidate upon the minds and feelings of the ordinary average voters of this country. [298A-F] The High Court was right in holding that tape records of the speeches  were  documents and were admissible  in  evidence, provided  the voice of the speaker was identified,  accuracy of the actual recording ascertained-and the relevancy of the subject matter established. [290A-B] The  High  Court rightly considered the tape records  to  be reliable for the following three reasons: firstly, the  tape records have been prepared by an independent authority,  the police  ; secondly, transcripts from the tape  records  were duly  prepared  very soon after the tape records  were  made which  made  the subsequent tampering easy to detect  ;  and thirdly, the police had made the tape records as part of its routine duties and not for the purpose of laying any trap to procure evidence. [290G-H, 291A] The  High  Court  rightly treated the  shorthand  notes  and shorthand  transcripts made by those who heard the  speeches as  corroborative  evidence and which could be used  by  the witness to refresh his memory. [291-F]                             283 The  High Court rightly held that the various speeches  made by the appellant violated the provisions of section  123(2), (3)  and  (3A).  We do not consider such speeches  have  any place  in  a  democratic set up in  our  Constitution.   Our democracy  can  only survive if those who aspire  to  become people’s  representatives and leaders understand the  spirit of  secular democracy.  If such propaganda was permitted  it would injure the interests of the members of the,  religious minority  groups more than those of others. [293 BF, 294  E, G, 295 E, H, 296 B] The objection that the affidavit was not in proper form  is, wholly  untenable.   The alleged defect is one  of  lack  of particulars which was given up by the appellant in the  High Court. [286 A & C] There  is no substance in the objection that the High  Court did  not frame an issue on the question of vagueness of  the petition.  The real objection is that the particulars of the speeches made by the appellant were given in great detail in the  statements annexed to the petition with  the  necessary affidavit.   The law does not require the whole evidence  to be set out in the petition in the form of particulars.  [286 CDE] The trial court by allowing the amendment merely removed the vagueness  from the petition by confining the allegation  of

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corrupt practice against the appellant himself. [286 G-H] Various allegations have been made of unfairness against the trial  Judge.  There is no substance in  those  allegations. The  nature of these allegations discloses  an  unreasonable attitude  of the appellant’s. counsel, which was also  exhi- bited during the course of the trial. [287-F] The order of costs appears to err on the side ’of  severity. The  order  of costs in favour of respondent No. 2  was  set aside since the petition was filed by respondent No. 1.  The costs  awarded in favour of respondent No. 1  was  red-,iced from Rs. 12,000 to Rs. 6,000. [298 E, FG]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 134 of 1973. From  the Judgment and order dated the  27th/28th  November, 1972 of the Bombay High Court in Election Petition No. 4  of 1972. K.K.  Singhvi,  R.  K.  Garg, V. J.  Francis  and  S.  C. Agarwala, for the appellant. M.C.,  Bhandare,  P.  H. Parekh,  and  S.  Bhandare,  for respondent No. 1. The Judgment of the Court was delivered by BEG, J.-This appeal under section 116A of the Representation of  the  People Act, 1951 (hereinafter referred to  as  ’the Act’) is directed against the Judgment and order of the High Court of Bombay setting aside the election of the  appellant to   the   Maharashtra  State  Assembly   from   Kumbharwada constituency  held  on  9-8-1972  on  a  voter’s   ,election petition. The  voter alleged that the appellant, in the course of  his election, bad committed corrupt practices defined in Section 123, sub.  S. (2) and (3) and (3A) of the Act.  The gist  of the  charges  against the  appellant  Ziyauddin  Burhanuddin Bukhari  (hereinafter  referred to as ‘Bakhari’),  a  Muslim League candidate, was, that, he had made 284      speeches  in  the  course  of  his  election   campaign calculated  to induce a belief in the voters that they  will be  objects  of divine displeasure or spiritual  censure  if they  voted  for  Shaukat  Currimbhoy  Chagla   (hereinafter referred  to as ’Chagla’), a Congress Party  candidate,  who was  impleaded  as  the 2nd respondent that,  in  the  above mentioned  speeches,  the  appellant  had  called  upon  the electors  to vote for him and not for Chagla on  the  ground that  he alone stood for all that was Muslim whereas  Chagla represented all that was against Muslim religion and  belief so that Chagla could not be a true Muslim at all, the object of such appeals being to further the chances of election  of Bukhari  and, to prejudicially effect the prospects  of  the election  of  Chagla  ; that, the  appellant,  Bukhari,  had attempted  to promote feelings of enmity and hatred  between Muslims  and  Hindus on grounds of religion  and  community. Particulars  of the speeches delivered at  sixteen  meetings and  what was said there by Bukhari were furnished with  the election petition. The  alleged corrupt practices are defined in the  following provisions of Section 123 :               "(2)  Undue  influence, that is  to  say,  any               direct or indirect interference or attempt  to               interfere on the part of the candidate or  his               agent, or of any other person with the consent               of  the candidate or his election agent,  with               the free exercise of any electoral right

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             Provided that-               (a)   without prejudice to’ the generality  of               the provisions of this clause any such  person               as is referred to therein who-               (i)   threatens any candidate or any  elector,               or  any  person  in whom  a  candidate  or  an               elector is interested, with injury of any kind               including social ostracism and excommunication               or expulsion from any caste or community; or               (ii)induces   or   attempts  to   induce   a               candidate or an elector to believe that he, or               any  person  in whom he  is  interested,  will               became or will be rendered an object of divine               displeasure or spiritual censure,               shall  be  deemed to interfere with  the  free               exercise  of  the  electoral  right  of   such               candidate  or  elector within the  meaning  of               this clause;               (b)   a  declaration  of public policy,  or  a               promise of public action, or the mere exercise               of  a legal right without intent to  interfere               with  an electoral right, shall not be  deemed               to  be interference within the         meaning               of this clause.               (3)   The  appeal by a candidate or his  agent               or  by any other person with the consent of  a               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 or the use of, or appeal to,               national symbols, such as the national flag or               the  national emblem, for the  furtherance  of               the prospects of the election of that                                    285               candidate  or for prejudicially affecting  the               election of any candidate.               (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               or for prejudicially affecting the election of               any candidate." Before  considering  whether  the allegations  made  in  the petition are substantiated, and, if so, whether any  corrupt practice, as defined above was committed, beyond  reasonable doubt, by the appellant, we will deal with certain technical objections placed before us at the outset by learned Counsel for the appellant. It  is urged that allegations of corrupt practices,  falling under  Section 123(3) and 123(3A), are not supported by  the affidavit  required by the proviso to Section 83(1)  of  the Act.  Section 83 of the Act enacts :               "83.   Contents  of petition-(1)  An  election               petition-               (a)   shall contain a concise statement of the               material   facts’  on  which  the   petitioner               relies;               (b)   shall set forth full particulars of  any               corrupt practice that the petitioner  alleges,               including  as full a statement as possible  of

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             the  names  of  the parties  alleged  to  have               committed  such corrupt practice and the  date               and  place  of  the commission  of  each  such               practice; and               (c)   shall  be signed by the  petitioner  and               verified  in the manner laid down in the  Code               of  Civil Procedure, 1908 (5 of 1908) for  the               verification of pleadings               Provided that where the petitioner alleges any               corrupt  practice, the petition shall also  be               accompanied by an affidavit in the  prescribed               form  in  support of the  allegation  of  such               corrupt practice and the particulars thereof.               (2)   Any schedule or annexure to the petition               shall  also  be signed by the  petitioner  and               verified in the same manner as the petition". It  was  submitted that Section 80 of the Act amounts  to  a prohibition  against  calling  in  question  any   election, "except by an election petition presented in accordance with the  provisions  of  this  part" (i.  e.  Chapter  II  which contains  Section  83).  Apart from the fact that  the  High Court  dealing  with  this question  had,  in  our  opinion, rightly recorded the finding that the issue No. 2, framed on this objection, was specifically given up in its entirety by the learned Counsel for the appellant, so that he could  not wriggle out of it by a vague reservation of some right to 286   urge  that the affidavit filed was not in proper form,  we were  not shown any defect of form at all in  the  affidavit filed.   All that was urged is that the  relevant  affidavit does  not give the sources of information so far as  corrupt practices. under section 123 (3) and 123 (3A) are concerned. As  was pointed out by this Court in Hardwari Lal v.  Kanwal Singh(1), this is not a defect of the required form but may, in  suitable cases, form the subject matter of an  objection based on Section 86 and Section 123 (7) of the Act  relating to supply of material particulars.  It was indicated by this Court  in  Prabhu Narayan v. A. K.  Srivastav’a(2),  that  a petition can only be dismissed for a substantial defect. In  the case before us, as there is no defect at all in  the form  of  the affidavit, and the alleged defect of  want  of particulars, set up in  paragraph 2 of the written statement on which issue No. 2 was framed, must be deemed to have been given up on behalf of the appellant, we cannot now entertain in  this  Court  an  objection  based  on  alleged  want  of particulars, particularly as nothing material seems to  have been  wanting.  We also think there is no substance  in  the appellant’s objection that the Trial Court had not framed an issue     on  an alleged vagueness of the petition which  is another  way of saying that it was wanting  in  particulars. The  particulars of the speeches made by the appellant  were given  in  great  detail in the statements  annexed  to  the petition with the necessary affidavit.  We can presume that, if  such an objection on the ground of  insufficient  parti- culars  is  actually given up by a party so  that  an  issue actually  framed  on it is not tried, the party  could  have suffered  no  disadvantage  from  alleged  want  of  further details  which are really matters of evidence. The law  does not  require  the  whole evidence to be  set  out  with  the petition in the form of particulars.      Still  ’another objection was that the Trial Court  had eroneously allowed an amendment of the election petition  by an order dated      29-9-1972. Reliance was placed upon this Court’s decision in Manubhai  Nandlal  Anersey  v.  Popatlal Mainilal  Joshi & Ors.(3) and Samant N. Balakrishna etc.  v.

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George  Fernandez  &  Ors.  etc.(4),  to  contend  that  the amendment  asked for should not have been allowed.  We  have examined  the  application for amendments  of  the  petition sought by the petitioner and allowed by the Court. We  think that  the  amendments  really  removed  vagueness  from  the petition by    confining the allegations of corrupt practice to  what of corrupt practice to what the  appellant  Bukhari himself had said in his speeches. Attributions of those very statements   to  his  agents,  in  the  alternative,   which introduced some ambiguity, were deleted. An  other amendment sought  was the insertion of names of persons said  to  have made certain other speeches. The High Court had allowed  the amendments  on  the ground that they did not amount  to  any allegation of a fresh corrupt practice. The question whether the  speeches  of certain persons other than  the  appellant were  rightly  permitted  to become the  subject  matter  of consideration by the amendment has lost all (1)[1972] (2) SCR 742. (2)C.A. No. 1174 of 1973-delivered on 14-2-75. (3)[1969] (3) SCR 217. (4)  [1969] (3) SCR 603. 287 importance as the appellant has been held guilty of  corrupt practices solely for speeches made by himself and we propose to  deal with those only.  We, therefore, find no  force  in the  objections  to  the order  allowing  amendment  of  the election  petition,  which only clarified  the  petitioner’s case. Learned  Counsel  for the appellant  invited  out  attention especially to ground ‘H’ of the grounds of appeal.  This  is the  most prolix of all the grounds of appeal the number  of which  not only exhausts the whole alphabet ’A’ to  ’Z’  but ground  numbered  ’Z’ is divided into , subgrounds  ’Zl’  to ’Z.15’,  and each of these sub-grounds is further  split  up into a number of minor grounds.  Ground ’H’ itself is  split up  into 22 parts which cover 5 printed pages of  our  paper book.   Ground ’H’ thus consists of a long statement of  the appellant’s  grievances about multifarious matters  covering the whole course of trial of the case, such as a  permission given  by  the Court to recall a  police  Sub-Inspector  for further examination, permission accorded by the Court to the respondent’s   Counsel  for  getting  transcripts   of   the appellant’s   tape   recorded  speeches   made   under   the supervision  of a Court officer, permission granted  to  the Solicitors  of Chagla to obtain copies of  documents  filed, the  observations  recorded by the learned Judge  about  the demeanour  of  witnesses  and  other  similar  matters.   No illegality  whatsoever  is  even alleged in  most  of  these purported grounds of objection.  If these grounds indicate a carpingly  unreasonable attitude of the  appellants  Counsel during the course of the trial in the High Court or attempts to  make  mountains out of molehills, they may  afford  some light  on  why the rather unusual order of heavy  costs  was passed  by  the  learned  Judge with  which  we  shall  deal separately  at  the end of this Judgment  we  are,  however, unable to find, from material on record, that the conduct of the  trial  by  the learned trial Judge was  unfair  in  any respect.   Moreover, we think that the only really  material question  before  the Court for decision, on which  we  have ourselves  reexamined the whole evidence on record,  were  : Did  the  appellant’s speeches contain what was said  to  be tape-recorded and also sought to be proved by oral  evidence supported  by  the notes of those who are  alleged  to  have heard these speeches themselves ? If this was so, was  their effect upon the ordinary average voters of this country such

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as  to come within the mischief provided for by any  of  the three  heads  of provisions of Sec. 123 of the Act  set  out above  ?   These  are  questions  capable  of  determination objectively  irrespective of the subjective inclinations  or opinions  of  the  Judge deciding such  issues  although  we cannot, and should not even try to, escape the consequences, upon  any  case  before us, of  our  conclusions  about  the purposes and meanings of the relevant provisions of  Section 123 of the Act, set out above, reached by applying  relevant rules of interpretation of such provisions. We  propose  to indicate, at this stage, what  mischief  the provisions  were designed to suppress because that seems  to us to. be the most illuminating and certain way of correctly construing these statutory 288      provisions.   We cannot do so without adverting to  the historical, political, and Constitutional background of  our democratic  set  up, such provisions are  necessary  in  our opinion,  to  sustain  the spirit or climate  in  which  the electoral machinery of this set up could work. Our  Constitution-makers  certainly  intended to  set  up  a Secular  Democratic Republic the binding spirit of which  is summed up by the    objectives set forth in the preamble  to the Constitution. No democratic political and social  order, in  which  the conditions of freedom and  their  progressive expansion  for  all make some regulation of  all  activities imperative,  could endure without an agreement on the  basic essentials  which  could unite and  hold  citizens  together despite  all  the  differences  of  religion,  race,  caste, community,  culture,  creed  and  language.   Our  political history   made   it  particularly   necessary   that   these differences, which can generate powerful emotions, depriving people  of  their  powers of rational  thought  and  action, should not be permitted to be exploited lest the  imperative conditions  for the preservation of democratic freedoms  are disturbed. It  seems to us that Section 123, sub s. (2), (3)  and  (3A) were  en    acted  so as to eliminate,  from  the  electoral process,  appeals  to those divisive  factors  which  arouse irrational passions that run counter to the basic tenets  of our  Constitution, and, indeed, of any  civilised  political and social order.  Due respect for the religious beliefs and practices, race, creed, culture and language of other  citi- zens  is  one  of the basic  postulates  of  our  democratic system.   Under the guise of protecting your  own  religion, culture  or creed you cannot embark on personal  attacks  on those   of  others  or  whip  up  low  hard  instincts   and animosities  or  irrational fears between groups  to  secure electoral  victories.   The  line has to  be  drawn  by  the Courts, between what is permissible and what is  prohibited, after  taking  into account the facts and  circumstances  of each   case  interpreted  in  the  context  in   which   the statements or acts complained of were made. Section  123 (2) gives the "undue influence" which could  be exercised  by a candidate or his agent during an election  a much  wider connotation than this expression has  under  the Indian  Contract  Act.  "Undue influence",  as  an  election offence  under  the English law is explained as  follows  in Halsbury’s Laws of England, Third Edition, Vol. 14, p.  223- 224 (para 387)-               "A   person  is  also  guilty       of   undue               influence,  if he, directly or  indirectly  by               himself or by any other person on his  behalf,               makes  use of or threatens to make use of  any               force, violence or restraint, or inflicts,  or

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             threatens  to  inflict, by himself or  by  any               other   person,  any  temporal  or   spiritual               injury,  damage, harm or loss upon or  against               any  person in order to induce or compel  that               that person to vote or refrain from voting  or               on  account  of that person  having  voted  or               refrained from voting.               A person is also guilty of undue influence if,               by abduction, duress or any fraudulent  device               or  contrivance,  he impedes or  prevents  the               free  exercise of the franchise of an  elector               or  proxy for an elector, or thereby  compels,               induces               289               or  prevails upon an elector or proxy  for  an               elector  either  to vote or  to  refrain  from               voting". It will be seen that the English law on the subject has  the same object as the relevant provisions of Section 123 of our Act.   But,  the provisions Section 123 (2),  (3)  and  (3A) seems  wider in scope and also contain specific  mention  of what  may  be construed as "undue influence" viewed  in  the background   of  our  political  history  and  the   special conditions which have prevailed in this country. We have to determine the effect of statements proved to have been  made  by a candidate, or, on his behalf and  with  his consent, during his election, upon the minds and feelings of the ordinary average voters of this country in every case of alleged  corrupt  practice  of  undue  influence  by  making statements.   We  will therefore, proceed  to  consider  the particular facts of the case before us. We   have  already  mentioned  above  that   the   offending statements  were alleged to have been made by the  appellant at  sixteen  election meetings addressed at  various  places between   12-2-1972  and  6-3-1973.   Out  of   these,   the petitioner’s  counsel  had  given up, in  the  Trial  Court, reliance  on  speeches At four meetings some of  which  were held  at places outside the appellant’s  constituency.   The High  Court  held that the contents of speeches  alleged  to have  been made on 1-3-1972 at Erskine Road and on  3-3-1972 at Ismail Curtay Road and on 4-3-1972 at Nizam Street by the appellant were not duly proved.  The High Court did not find that  the statements made by the appellant in the course  of the speeches on 12-2-1972 at Kachi Memon Jamat Khana and  on 23-2-1972  and 28-2-1972 at Chima Butcher Street had  trans- gressed  the limits of propriety set by Section  123(2)  and (3)  and (3A) of the Act.  But, it found that the  appellant had  violated  the provisions of either  Section  123(2)  or 123(3)  or  123(3A)  of the Act by statements  made  in  the course  of  the remaining six speeches proved to  have  been made by the appellant. The evidence relating to the appellant’s speeches, discussed fully by the High Court, consisted of : 1.   Cassettes or tape records of the appellant’s speeches. 2.   Transcripts of tape recorded speeches prepared  shortly after tape-recording them. 3.Full shorthand records of speeches of the appellant  by those who heard them at meetings. 4.Notes   and   records  containing  summaries   of   the appellant’s speeches made by persons attending meetings. 5.Statements of witnesses present at the meetings who had actually heard what was said by the appellant. There  could  be  and  was  no  objection,  raised  to   the admissibility  of the last mentioned type of evidence.   But questions  relating to the admissibility of the  first  four

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types  of evidence, mentioned above, were taken and  may  be conveniently dealt with here. 290 We think that the High Court was quite right in holding that the tape records of speeches were "documents", as defined by Section  3 of the Evidence Act, which stood on no  different footing  than photographs, and that they were admissible  in evidence on satisfying the following conditions      (a) The voice of the person alleged to be speaking must be  duly identified by the maker of the record or by  others who knew it. (b)Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or  circumstantial,  had  to  be there so  as  to  rule  out possibilities of tampering with the record. (c)The  subject  matter  recorded had to be  shown  to  be relevant  according  to  rules of  relevancy  found  in  the Evidence Act. These requirements were deduced by the High Court from R. V. Maqsud Ali (1) The High Court had also relied  on Yusufalli Esmail  Nagree v.   State of Maharashtra(2), to hold that a contemporaneous tape  record of a relevant conversation or speech  would  be part  res  gestae.  In this case, Court, while  laying  down requirements  of admissibility of tape records as  evidence, also pointed out that the case with which the recording on a tape  could  be  erased by  subsequent  recording,  so  that insertion  could  be  superimposed,  made  it  necessary  to receive  such  evidence with caution, and it said  that  the Court should be satisfied, beyond reasonable doubt, that the record had not been tampered with The  High Court also referred to N. Sri Roma Reddy and  Ors. v.  V.  V.  Girl,(3)  for the  proposition  that,  like  any document,  the  tape record itself was "primary  and  direct evidence admissible of what   has been said and picked up by the receiver".  In other words, its use was not confined  to purposes of corroboration and contradiction only, but,  when duly  proved  by  satisfactory evidence of  what  was  found recorded  and of absence of tampering, it could, subject  to the   provisions   of   the  Evidence  Act,   be   used   as substantiative  evidence.  Thus, when it was disputed or  in issue  whether a person’s speech, on a particular  occasion, contained  a particular statement there could be    no  more direct  or  better  evidence of it  than  its  tape  record, assuming its authenticity to be duly established. In  our opinion the High Court bad rightly relied  upon  the tape recorded reproductions of the appellant’s speeches.  It had given three grounds for considering the tape records  to be  reliable  and authentic: firstly, the tape  records  had been  prepared  and  preserved  safely  by  an   independent authority,  the  police,  and not by a party  to  the  case, second, the transcripts from the tape records, shown to have been   duly  prepared  under  independent  supervision   and control,  very  soon afterwards, made  subsequent  tempering with the cassettes easy to (1)  [1965)(2) All.E.R.464. (2)1968 (Vol.70) Bombay Law Reporter 76 @,78. (3)  [1971] (1) SCR 399.                             291 detect;  and, thirdly, the police had made the tape  records as  parts  of  its routine duties in  relation  to  election speeches  and  not  for the purpose of laying  any  trap  to procure evidence. We  may  add a fourth reason.  This is  that,  after,  going through  the deposition of Bukhari in Court, we  find  that,

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although he was identified by police officers as the  person who was speaking when the relevant tape records were made he did not, at any stage, dispute that the tape recorded  voice was his.  He only denied having made some of the  statements found  recorded  after the tape records had been  played  in Courtin  his  presence.  In fact, he admitted  that  he knew that "the cassetteswere  recorded by police  officers’ who gave           evidence" in Court.  Ifthe    indirect implication of his dubious statement, in denying some of the statements  found in the speeches without denying  that  the voice  making these statements was his’, could be that  some portions  had been interpolated, the police officers  should have  been  cross-examined  about  it.   Nevertheless,   the appellant  admitted,  under cross-examination, that  he  had given no instructions to his Counsel to cross-examine  these officers  on  this  matter.  No suggestion was  put  to  the police officers concerned indicating that there had been any interpolation in the records the making of which was proved beyond  all reasonable doubt by evidence which bad not  been shaken. As  regards the shorthand transcripts of the  tape  records, the  evidence  of  their makers is there,  it  is  certainly corroborative  inasmuch as it only goes to confirm what  the tape  records contained.  The tape records were the  primary evidence  of  what was recorded.  The transcripts  could  be used  to show what the transcriber had found recorded  there at the time of the transcription.  This operated as a  check against  tampering.  They had been rightly used by the  High Court only as corroborative evidence. As   regards  the  shorthand  notes  and   full   short-hand transcripts  made by those who heard the speeches, the  High Court had treated these also as corroborative evidence which could  be  used by a witness to refresh his memory  as  laid down in Section 159 of the Evidence Act.  It held that their contents could be brought on record by direct oral  evidence in the manner prescribed by Section 160 of the Evidence Act, a course the propriety of which has the support of decisions in  this  Court  in Laxminarayan and Anr  v.  The  Returning Officer  and Ors.(1), and in Kanti Prasad Jayshankar  Yagnik v. Purshottamdas Ranchhoddas Patel and OrS.,(2). We find  no errors  in  the  views adopted by the High  Court  on  these questions. It  was  suggested that the tape recording,  the  making  of transcripts, the making of shorthand notes by the police had taken  place at the instance of a Journalist,  Yunus  Rehman Ansari, who appeared as a witness for the petitioner in  the case.  He had frankly stated in his evidence in Court :               "During the elections I was looking after  the               interest  of  the  second  respondent.       1               did feel disappointed when the (1)[1974] 3 S.C.C-. 425 (2)  [1969] 3 SCR 400. second  respondent lost the election.  Every worker  of  the candidate feels disappointed if the candidate loses". After  having been taken through the evidence, in the  light of  the  submissions  made by the learned  Counsel  for  the appellant, we are unable to hold that there must have been a conspiracy  between  the Police Officers  and  Yunus  Rehman Ansari  to  procure evidence for declaring the  election  of Bukhari void.  Ansari, although not a disinterested witness, had  stood the test,of cross-examination well and could  not be  disbelieved  merely because he was a worker  of  Chagla. His evidence is corroborated by the duly proved contents  of tape  recorded  speeches,  and,  indeed,  by  some  of   the admissions  of Bukhari himself showing, inter-alia, that  he

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considered  any one who advocated reform of Muslim  personal law to be a person unfit to get the support of "any Muslim". He said :               "It is true that Muslim personal law is  apart               of our religion (Wit. gives this answer  after               first  attempting  to evade  giving  a  direct               answer).    It  would  follow   that   whoever               attempted  to change the Muslim  personal  law               would  be  attempting to  affect  the  Muslim,               religion.   It is true that whoever  attempted               to do so would not be entitled to the  support               of a true Muslim or of any Muslim.  I conveyed               this   repeatedly   in  my  speeches   to   my               electorate". We  will  now  take  up the contents  of  each  of  the  six offending speeches, which, for the reasons indicated  above, were  rightly  held to have been  proved  beyond  reasonable doubt to have been made by the appellant. The  first  of the speeches found to  be  objectionable  was delivered  by the appellant on 27-2-1972, at Masjid  Street, within his own constituency.  It is true that the  con-tents of  this  speech are proved only by the evidence  of  Ansari corroborated by the notes prepared by Ansari himself.   But, as these correspond with contents of other speeches examined by  us,  there seems no reason to         disbelieve  Ansari when  he  says  that the appellant told  the  audience  that Muslim  personal  law was a matter of  religious  faith  for Muslims  and that it extended to the mode of  disposing  off bodies  of  the  dead.  The appellant went on  to  tell  the listeners that, if they voted for Chagla, they would have to cremate  the  bodies of their dead instead of  burying  them because  Chagla  had cremated the dead body of  his  sister. The  appellant  also attacked Chagla’s religion  by  stating that everyone had to observe his religion wholeheartedly and not  like one who was (to put it in the  equivalent  English idiom) "neither fish nor fowl".  The appellant entreated his audience  not  to  vote for those who  stood  against  their religion.   The  clear  implication of his  words  was  that Chagla  was not true to his religion whereas  the  appellant was, and, therefore, the voters should prefer Bukhari.   His absolutely  unambiguous object was to persuade the  audience not to vote for Chagla but to vote for Bukhari on the ground that Bukhari was a true Muslim whereas Chagla was not.                             293 The  High Court had referred to Kultar Singh v.     Mukhtiar Singh(1),  and said that a candidate appealing to voters  in the  name  of  his religion could be  guilty  of  a  corrupt practice struck by Section 123(3) of the Act if lie  accused a   rival   candidate,   though  of   the   same   religious denomination, to be a renegade or a heretic.  The  appellant had  made a direct attack of a personal character  upon  the competence of Chagla to represent Muslims because Chagla was not,  according to Bukhari, a Muslim of the kind  who  could represent Muslims.  Nothing could be a clearer  denunciation of  a rival on the ground of religion.  In our opinion,  the High   Court  had  rightly  held  such  accusations  to   be contravention of Section 123(3) of the Act. The second speech found to contain objectionable matter  was proved to have been delivered by the appellant on  29-2-1972 at Hussainibagh, a place said to be so situated that, though it  lies  outside the Kumbharwada  constituency,  a  meeting there  would be attended largely by persons residing  within Kumbharwada  constituency.   Its contents were proved  by  a police Stenographer, Sheikh, who had made a full  short-hand record  of  it which was translated.  In  this  speech,  the

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,appellant  was shown to have stated that,  although  Muslim personal law may be considered a personal matter by  Chagla, it  was  considered to be "the law of God"  by  Muslims  who would  not tolerate any attempts to amend it as  that  would raise  a religious question.  In the course of this  speech, the appellant is reported to have said that, if the Congress Government brought in "amendments in our religious law", the "battle would be fought in every street" as "the question of religion  has  arisen".  The appellant  had  threatened  the ruling  Congress party with open rebellion if attempts  were made  to  change  Muslim personal law  which  he  called  "a question   of  religion".   The  appellant  had  also   made statements  implying  that Chagla was a  supporter  of  this policy  of  change  in  what Bukhari  called  "a  matter  of religion"  for Muslims.  The High Court had held that  these statements amounted to a violation of Section 123(3A) of the Act, on the ground that Bukhari’s language was calculated to promote  hostility  between Hindus and Muslims.   It  opined that,  in the appellant’s mind, ,the Congress stood for  the Hindu majority.  We think that the language employed, viewed in  the context of its purposes, could also fall within  the purview of Section 123(3) of the Act inasmuch as Chagla  was represented  as a candidate advocating what was contrary  to Bukhari’s  view of Muslim religion.  Indeed, the words  used by Bukhari could be said to have even graver  implications. However, we think that it was sufficiently unrestrained  and irresponsible so as to promote feelings of hostility between different classes of citizens of India on ground of religion and  also  directed personally against  Chagla,  an  alleged supporter  of an assumed attack on Bukhari’s relion.  We  do not  find sufficient reason to differ from the view  adopted by  the  High  ,Court  that  these  statements  amounted  to electoral offences struck by Section 123(3A) of the Act. The third speech containing objectionable matter was  proved to  been  delivered by the appellant on  2-3-1972  at  Saifi Jubilee (1)  [1964] 7 S.C.R. 790.                             294 Street within his own constituency.  Its contents are proved by a full transcript made by Police Stenographer Sheikh,  of which  an English translation was before the Court,  and  by the oral evidence of Ansari corroborated by Ansari’s  notes. It contained allegations  against Chagla’s faithfulness  to Muslim  religion on the ground that he had advocated  inter- communal or inter-caste marriages and that he wanted a Hindu to  be  a  member of the Hai Commit-tee.   After  the  usual fulminations against Chagla, the appellant flung a  question addressed  to Chagla.  It was translated : "With what  check you  say  that  you  are  a  representative  of  ours"?   In addition,  there  were  references to riots  in  which  only Muslims  were alleged to have been killed.  There  was  also the usual statement that Muslim personal law was a matter of religion to Muslims.  Bukhari then declared that if this law was  sought to be changed, Muslim league  candidates  "would become  such a wall’ for them against Which they will  break their beads".  Bukhari claimed that he could die for  Islam. He  then  said: "God has blessed us that every drop  of  our blood would give birth to thousands of Bukharis". It appears to us that the High Court was right in construing the speech as highly inflammatory.  It certainly.  amounted to  the  assertion that Muslim religion  (or,  what  Bukhari thought it was) was in danger and could only be saved by man like Bukbari and not by Chagla.  We think that it is a  fair construction  on the speech to hold that it amounted  to  at least  a violation of Section 123(3) of the Act.   We  think

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that it was also struck by Section 123(3A) of the Act. The-fourth   speech  of  the  appellant,  said  to   contain offending  matter, was shown to have been delivered on  6-3- 1972 at Bara Imam Road within the appellant’s  constituency. It  was tape recorded by Sub Inspector N. A. Khan.   In  it, after  the  usual  accusations, Chagla is  attacked  in  the following words :               "At  the moment we are in such a war in  which               our  opponent is such a person who is  playing               with  our religious affairs.  He considers  us               to be a community whose conscience is dead". The High Court rightly held it to be a violation of  Section 123(3) of the Act. Another  part of the speech which the High Court is held  to be violative of Section 123 (3A) of the Act runs as follows               "We  have not signed any deed of  slavery  for               the  Government.   When  we  feel  that   this               Government  is working against us, our  rights               are being crushed, our religious affairs are               being  interfered with, then will rise  openly               against  it.,  We  would  rise  like  a   wall               cemented with lead.  Then who would bang  with               this wall, would get his head broken.  No harm               would be done to us". It  could  be  argued  that, even if  it  did  not  directly contravene the letter of Section 123(3A) of the Act, it  was an incitement to violence...                             295 We,  however, do not think it necessary to go  further  into this  question here.  We are not prepared to  disagree  with the  opinion of the High Court about this speech.  The  High Court  had rightly concluded that, in the appellant’s  mind, the Congress Govt. constituted "Hindu Raj The  fifth objectionable speech of the appellant was  shown to have been made on 6-3-1972 at Saifi Jubilee Street within the Kumbharwada constituency.  This speech was heard by Sub- Inspector Kulkarni who had made notes containing the gist of all  the  speeches delivered at the  meeting.   Nothing  was brought  out  to  cast any doubt on  the  veracity  of  Sub- Inspector  Kulkarni, who appeared as a witness and gave  out the contents of the appellant’s speech.  In the speech,  the appellant  had attacked Chagla and his family on the  ground that Chagla had advocated the inclusion of Hindus in the Haj Committee.  Bukhari alleged that Chagla’s wife, a Hindu lady called  Nalini,  his son Ashok, as well as  Chagla  used  to attend  the mosque as well as the temple.  Bukhari  went  so far  as to state that Chagla should be excluded from  Muslim localities.   Bukhari  alleged that Chagla  and  his  family pleased neither Allah nor Bhagwan.  In other words, Bukhari, apart from making a direct attack on-the alleged  religious beliefs and practices of the Chaglafamily,      clearly conveyed to the bearers that Chagla was an unfit  person, on the  ground of his mixed religious faith and  practices,  to represents Muslims  Bukhari had also called upon Muslims to unite against such a person   if   they   wanted   their religion to survive. The High Court had very    rightly held  that  these statements contravened the  provisions  of Section 123(3) of the Act. The  sixth and the last speech containing  offensive  matter was  shown to have been made on 6-3-1972 at  Chowki  Mohalla Underia  Street  which,  although  outside  the  Kumbharwada constituency, was so situated as to attract the voters  from the  Kumbharwada  constituency  hardly 600  ft.  away.   The speech  was tape recorded by Sub-Inspector N. A.  Khan.   In this  speech,  the  appellant  again  attacked  Chagla   and

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repeated  what,  according  to him, he had  also  stated  at another  meeting, that is to say, that Chagla was neither  a good Hindu nor a true Muslim so that neither God nor Bhagwan was  pleased with him.  He compared Chagla to a Dhobi’s  dog who  neither  belonged to the Dhobi nor to  the  Ghat.   The appellant,  while  thus  attacking,  the  alleged   personal beliefs and practices of Chagla, obviously in an attempt  to induce the voters to refrain from voting for Chagla,  prayed to God for success so that no one may be able to attack  the religion of Bukhari. The  whole  outlook revealed by the speeches of  Bukhari  is that of a medeival crusuder who had embarked on a Jehad  for extirpation  of  the heresy or "kufr"  which,  in  Bukhari’s imagination, was represented by Chagla and his party.  We do not consider such speeches to have any place in a democratic set  up under our Constitution-.  Indeed, they have none  in the  world of modern science which has compelled every  type of   religion,  for  its  own  survival,  to  seek   securer foundations  than  childlike  faith  in  and   unquestioning conformity  of obediency to an invariable set  of  religious beliefs and practises. 10 SC/75-20.                             296 We do not think that any useful purpose is served by  citing authorities, as the learned Counsel for the appellant  tried to  do,  to  interpret the facts of the case  before  us  by comparing  them to the very different facts of other  cases. In  all such cases, the line has no doubt to be  drawn  with care  so  as not to equate possible  impersonal  attacks  on religious   bigotry  and  intolerance  with  personal   ones actuated by bigotry and intolerance. As  already indicated by us, our democracy can only  survive if  those who aspire to become people’s representatives  and leaders  understand the spirit of secular  democracy.   That spirit  was characterised by Montesquieu long ago as one  of "virtue".   It implies, as the late Pandit Jawaharlal  Nehru once  said,  ",self  discipline".   For  such  a  spirit  to prevail,  candidates  at elections have to try  to  persuade electors  by  showing them the light of reason  and  not  by inflaming  their  blind  and  disruptive  passions.   Heresy hunting propaganda on professedly religious grounds directed against  a  candidate  at an election  may  be  permitted  a theocratic  state but not in a secular republic  like  ours. It  is evident that, if such propaganda was permitted  here, it  would  injure  the interests  of  members  of  religious minority groups more than those of others.  It is  forbidden in this country in order to preserve the spirit of equality, fraternity, and amity between rivals even during  elections. Indeed, such prohibitions are necessary in the interests  of elementary public peace and order. Learned  Counsel  for  the appellant submitted  that  if  we considered  the substance of what was said by the  appellant it  would  only  amount to a plea that  the  voters  should support one who opposes any change in Muslim personal law as against  another  ’who wanted to change it.   If  change  of personal  law  is, it is suggested, only a  secular  matter, opposition  to  its  change could not become  an  appeal  on grounds  of religion.  To accept this argument would  be  to view the appeal to the voters after turning it upside  down, or, perhaps, inside out.  We are not concerned so much  with the real nature of what is opposed or supported as with  the grounds on which a candidate claims support over a rival  We have  to primarily examine the cloak which the appeal  wears to parade in and not only what lies beneath it. If  all  human  activity in this  world  could  be  labelled

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"secular", on the ground that it appertains to "this  world" as  against  "the other world", all  religious  thought  and activity could be described as "secular", as it takes  place in this world.  But, the term it not used so broadly. It is a  convenient label to distinguish all that is done in  this world  without  seeking  the intervention or  favour  of  or propitiating a Superhuman or Divine Power or Being from that which is done professedly to please or to carry out the will of the Divinity. Secularism, in the realm of Philosophy,  is a  system of Utilitarian ethics, seeking to  maximize  human happiness  or  welfare quite independently of  what  may  be either religious or the occult. Primitive  man  does practically nothing without  making  it wear  religious  garb  because  his  understanding  of   the physical world, of                             297 human nature, and of social needs and realities, is limited. He  surrounds  customary  modes of action with  an  aura  of superstitious re verence.  He is fearful of departures  from these lest he is visited by Divine wrath.  Modern man,  with his  greater  range  of  scientific  knowledge  and   better understanding  of his own needs as well as of the nature  of the  Universe,  attempts to confine religion to  its  proper sphere--that  where  he reaches  a  satisfying  relationship between himself and the Divinity he believes in so as to get an  inner strength and solace which enable him  to  overcome psychological   crises   or  fears  when   confronted   with disturbing  or disrupting events, such as a Death, or  their prospects.  He does not permit his religion, which should be essentially  his  individual  affair,  to  invade  what  are property  the spheres of law, politics, ethics,  aesthetics, economics  and technology, even where its administration  is institutionalised and it operates as a social force. The Secular State, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices.  It is neutral  or impartial  in  extending  its benefits to  citizens  of  all castes  and  creeds.  Maitland had pointed out that  such  a state has to ensure, through its laws, that the existence or ,exercise  of  a political or civil right or  the  right  or capacity  to  occupy any office,or position under it  or  to perform  any public duty connected with it does  not  depend upon the profession or practise of any particular  religion. Therefore, candidates at an election to a legislature, which is a part of "the State", cannot be Allowed to tell electors that their rivals are unfit to act as their  representatives on grounds of their religious professions or practices.   To permit  such  propaganda  would  be  not  merely  to  permit undignified  ;personal attacks on candidates  concerned  but also to allow assaults on what sustains the basic  structure of our Democratic State. Our  Constitution  and  the  laws  framed  thereunder  leave citizens free to work out happy and harmonious relationships between  their  religions and the  quite  separable  secular fields  of  law and politics.  But, they do  not  permit  an unjustifiable  invasion  of what belong’s to one  sphere  by what  appertains  really to another.  It is  for  Courts  to determine,  in a case of dispute, whether any sphere was  or was  not  properly interfered with, in accordance  with  the Constitution,  even  by a purported law.  The  validity  of Section 123 (2), (3) and (3A) has not been questioned before us.  And, we have explained above what these provisions  are meant for. To  return  to the precise question before us  now,  we  may repeat  that  what  is relevant in such a case  is  what  is

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professed  or  put forward by a candidate as  a  ground  for preferring  him over another and not the motive  or  reality behind the profession or ostensible ground that very secular or  mundane.  It is the professed or ostensible ground  that matters.   If that ground is religion, which is put  on  the same footing as race, caste, or language as an objectionable ground  for  seeking votes, it is not permissible.   On  the other band, if support is sought on a ground distinguishable from those falling in the prohibited categories, it will not be struck by Section 123 of the Act whatever else                             298 it  may  or may not offend.  It is then left to  the  elect- orate  to  decide  whether a permissible view  is  right  or wrong. According to his own professions, the appellant wanted votes for himself on the ground that he staunchly adhered to  what he believed to be Muslim religion as contrasted with  Chagla who did not.  There is no doubt whatsoever in our minds that the High Court had rightly found the appellant guilty of the corrupt  practices  defined  by the  provisions  of  Section 123(2), 123(3) and 123(3A) of the Act by making the  various speeches closely examined by us also. Lastly,  we have before us the order for costs made  by  the High Court in the following terms :               "Having regard to the provisions of Section 99               of  the Act and Rules 24 and 26 of  the  Rules               framed  by this Court under the Act,  I  order               the first respondent to pay to the  petitioner               the  sum  of Rs. 12,000/- for costs.   I  also               order  the  first  respondent to  pay  to  the               second  respondent the sum of Rs. 3,000/-  for               costs.   There will be no order in  regard  to               costs  of the other respondents as  they  have               not  filed written statements or  appeared  at               the hearing." We think that, although Section 99 of the Act may permit the award of special costs in suitable cases, and, although, the appellant  has  been found guilty of  corrupt  practices  of quite an offensive kind, yet, the order for costs appears to us to err on the side of severity. if ’the respondent Chagla is  aggrieved in such a manner that he has grounds for  some actionable  claim  against  the appellant,  he  can,  if  so advised, take other steps which may be open to him under the law.  An order for costs should not become a substitute  for such  other  action with which we are  not  concerned  here. Moreover, in the case before us, the petition itself was not filed by the 2nd respondent Chagla.  In these circumstances, we  do  not think that there should have been an  order  for costs  payable  by the appellant to  the  second  respondent Chagla.   We,  therefore. set aside the order  awarding  Rs. 3,000/-  as  costs to Cbagla.  We also reduce  by  half  the costs  awarded to the successful petitioner, that is to  say from Rs. 12,000/to Rs. 6,000/-.  We, however, think that the appellant  must pay respondents 1 and 2 in this Court  their costs occasioned by his appeal to this Court. The  result  is that, subject to the  modifications  of  the order for costs, to the extent indicated above, this  appeal is  dismissed  with costs to respondents 1 and  2  on  whose behalf appearance was put in. P.H.P.                                    Appeal dismissed. 299