Dr. Ramesh Yashwant Prabhu vs. Prabhakar Kashinath Kunte & oth.

THIS ARTICLE WAS WRITTEN BY NIKHIL. B. GANGAI, A STUDENT OF SYMBIOSIS LAW SCHOOL, HYDERABAD.

• Facts of the case:
  • The election of Dr. Ramesh Yashwant Prabhoo, the Shiv Sena candidate from Vile Parle constituency to the Maharashtra State Legislative Assembly held on 19 December 1987 was declared to be void under section 100 of the People’s Representation Act of 1951, alleging corrupt practices by the Bombay High Court.
  • The chief of Shiv Sena, Bal Thackeray was also charged under section 99 and thereby a notice had been sent to him respectively.
  • The Bombay High Court in its decision had also stated that the particular use of ‘Hinduism’ or ‘Hindutva’ by the original defendants during the political canvassing had an incendiary effect and went against section 123(3) and 123(3A) of the representation of People’s Act.
  • The original defendants, appealed against this judgement of the High Court. The honourable Supreme Court in its judgement upheld the judgement of the High Court and declared the election of Dr. Ramesh Yashwant Prabhoo to be void under section 100 of the People’s Representation Act, 1951.
  • Though the meaning of ‘Hindu’ or ‘Hinduism’ or ‘Hindutva’ was clarified in this case as ‘a way of life’ and not referring to any particular religion or caste, the learned counsel for the respondents managed to convince the court that the effect and meaning of the word ‘Hindu’ on the masses could not be measured only on the basis of its conceptual meaning but would also depend on its general effect on the audience en masse.

• Procedural history:
• This case was originally heard in the honourable High court of Bombay which gave its judgment on 7^th April 1995 through which the election of Dr. Ramesh Yashwant Prabhoo was declared to be void.
• This was the judgement that arose out of the appeals made against the judgment of the Bombay High Court in the honourable Supreme Court of India dated 11/12/1995.
• Judgement:
• The Supreme Court came to the conclusion that the three speeches delivered by Bal Thackeray amount to corrupt practice under section 123(3) of the Representation of People’s Act, 1951.
• Of the three speeches made by Bal Thackeray, the first speech made at Vile Parle on 29/11/1987 was found to violate section 123(3A) of the Representation of People’s Act, 1951.
• The Supreme Court dismissed both the appeals and ordered the parties to bear their own costs.
• The court in its obiter dictum asked the political leaders to have more restraint on the kind of language used during public talks as they would have a greater effect on the masses. It expressed disgust that it was the political leaders that sought to destroy national secular polity for personal gains.

• Issues:
• Whether a speech in which reference is made to ‘Hindutva’ or ‘Hinduism’ or any religion during political canvassing would violate section 123(3) and/or 123(3A)?
• Would Bal Thackeray’s appeal for votes on the basis of ‘Hindutva’ come under his right to propagate his religion under article 25(1) of the Indian Constitution?
• Would Bal Thackeray’s speech come under his Right to freedom of speech and expression guaranteed under Article 19 of the Indian Constitution?

• Rules:

            The applied rules of law in this case are:

• Representation of People’s Act, 1951:

1. Section 98 – The court has the power after hearing an election petition to either dismiss it, declare it void or can declare the petitioner elected.
2. Section 99 – Along with orders from section 98, it also has the power to make an order punishing corrupt practices.
3. Section 100 – Grounds for declaring an election void.
4. Section 123(3) – The appeal by a candidate or his agent or by any other person with the consent of a candidates 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 candidate or for prejudicially affecting the election of any candidate.
5. Section 123(3A) – The promotion or attempt to promote feelings of enmity or hatred between different classes of citizens of India on grounds of race, religion etc.
6. 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.

• Indian Penal Code:

1. Section 153(A) – Promoting enmity between different groups of people on the basis of religion, race etc.

• Indian Constitution:

1. Article 19(1)(a) – All citizens shall have the Right to freedom of Speech and Expression.
2. Article 19(2) – The state can impose reasonable restrictions on the right to freedom of Speech and Expression guaranteed
3. Article 25 – Right to propagate one’s own religion.
4. Article 26 – Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof.
5. Article 27 – Freedom as to payment of taxes for promotion of any particular religion.
6. Article 28 – Freedom as to attendance at religious instruction or religious worship in certain educational institutions.
7. Article 29 –Protection of interests of minorities.
8. Article 30 – Right of minorities to establish and administer educational institutions.

• Analysis:
• Whether a speech in which reference is made to ‘Hindutva’ or ‘Hinduism’ or any religion during political canvassing would violate section 123(3) and/or 123(3A)?

The court described and cleared the contention between corrupt practices as:-

 (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 candidate or for prejudicially affecting the election of any candidate; provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.

(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.

The court also held that,

“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 after an academic 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 be kept in view.”

Here, the learned counsels for the respondents and the appellants argued about the way the speeches should be interpreted. The court held that whenever it was interpreted, it was to be interpreted from the point of view of the general public en masses and not from the view-point of the speaker.

Comments: The judges showed extreme precision and dexterity in inferring that even though ‘Hindutva’ or ‘Hinduism’ meant a way of life, its meaning had to be determined according to the existing conditions and opined that it should not be generic in nature. The judges, by this interpretation showed the extent of interpretation the courts can go, to deliver justice.

• Would Bal Thackeray’s appeal for votes on the basis of ‘Hindutva’ come under his right to propagate his religion under article 25(1)(b) of the Indian Constitution?

The answer to this issue can be inferred partly by studying the case of

Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra

In short, the appeal for votes was made on the ground that Bukhari was a staunch believer of the Muslim religion as against Chagla who did not. It was this clear that this appeal was based on the ground of the candidate’s religion which was held to constitute the corrupt practices defined by Sub-sections (3) and (3A) of Section 123 of the R. P. Act.

On analysing the motive or preamble so as to understand why the legislators felt the need for such a law, it is found that even though a person can propagate his own religion under Article 25(1)(b), he cannot do so to gain votes on the basis of his religion.

“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.”

Though the above has been said, the line demarcating such acts and valid acts has not been drawn. It has been left to the discretion of the courts to decide it, case by case.

Comments: The judges were right in analysing the preamble to try and understand the motive behind the making of the statute. They intelligently touched every area of the subject and made sure it was interpreted in the correct way.

• Would Bal Thackeray’s speech come under his Right to Freedom of Speech and Expression guaranteed under Article 19 of the Indian Constitution?

Sub-sections (3) and (3A) of Section 123 of the Act are constitutionally invalid being violative of guarantee of free speech in Article 19(1)(a) of the Constitution;

(2) To save both these provisions from constitutional invalidity, they must be read as reasonable restrictions in the interest of public order to get the protection of Article 19(2) of the Constitution. In other words, unless the speech is prejudicial to the maintenance of public order, it cannot fall within the net of either Sub-section (3) or Sub-section (3A) of Section 123 of the Act;

Comments: This part of the judgement of the Honourable Supreme court was very prominent in coming to the decision. The court held that even though a person had the fundamental right to “free Speech and Expression”, it is restricted by the subsections (2) and the (3) of the people’s Representation Act, 1951.

• Meaning of ‘Hinduism’ or ‘Hindutva’:

Ram Jethmalani referred to various historic and famous writings for the purpose of indicating the several meanings of these words and to emphasise that the word ‘Hindutva’ relates to Indian Culture based on the geographical division known as Hindustan, i.e., India. On the other hand, Ashok Desai emphasised that the term ‘Hindutva’ used in election speeches is an emphasis on Hindu religion bearing no relation to the fact that India is also known as Hindustan, and the term can relate to Indian culture.

Considering the terms ‘Hinduism’ or ‘Hindutva’ as depicting hostility, enmity or intolerance towards other religions, proceeds from an improper appreciation and perception of the true meaning of these expressions emerging from the detailed discussion in earlier authorities of this Court. Misuse of these expressions to promote communalism cannot alter the true meaning of these terms. The mischief resulting from the misuse of the terms by anyone in his speech has to be checked and not its permissible use.

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 practising 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) of Section 123.

• Comments:
• This judgement delivered by the honourable Supreme Court was fair and just and upheld the principle of justice.
• Though the judgement was just, it was poorly enforced as Bal Thackeray, even though pronounced guilty was let off with a fine instead of a punishment fearing riots in the State of Maharashtra.
• The judgement will act as an example to deter demagogues from using unfair means to secure power.
• This case laid down the fact that though the meaning of ‘Hindu’ or ‘Hindutva’ was very vague and could be conceptually defined to any extent in any direction; when deciding a case, its meaning would be understood looking into the effect it caused on the audience en masse and would be differently defined case by case.
• This case is a landmark case that clearly defines what ‘Hindu’ or ‘Hindutva’ is. The court held that it was corrupt practice to appeal for votes on the basis of religion and asked the political leaders to practice more restraint on the kind of language used during political canvassing.
• The dexterity with which the judgement was delivered ensures that justice was delivered and no wrong doer escaped liability. It reassures the confidence of the public at large in the judicial machinery and proves to the world that the judges in the apex court of India are more than competent to judge the most complex of the legal problems.