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TMI Blog1975 (4) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 3. 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged 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 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 CPC, 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. 6. It was submitted that Section 81 of the Act amounts to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le evidence to be set out with the petition in the form of particulars. 8. Still another objection was that the Trial Court had erroneously 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 and Ors. [1969] 3 SCR 217 and Samant N. Balakrishna etc. v. George Fernandez and Ors. etc. [1969] 3 SCR 603 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. Another 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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 as to come within the mischief provided for by any of the three heads of provisions of Section 123 of the Act set but 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. 10. 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 provisions. We cannot do so without adverting to the historical, political, and Constitutional background of our democratic set up, such provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mself 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 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 or prevails upon an elector or proxy for an elector either to vote or to refrain from voting. 14. 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. 15. We have to determine the effect of statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peeches 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 [1965] (2) All. E.R. 464 20. The High Court had also relied on Yusufalli Esmail Nagree v. State of Maharashtra 1968 (Vol. 70) Bombay Law Reporter 76 @ 78 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 erase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 had not been shaken. 24. 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 Courts only as corroborative evidence. 25. As regards the shorthand notes and full short-hand transcripts made by those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28. 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. 29. 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 contents 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 whole-heartedly and not like one who was (to put it in the equivalent English ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 region . 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( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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. 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 37. The fifth objectionable speech of the appellant was shown to have B been made on 6-3-1972 at Saifi Jubilee Street within the Kumbhar wada 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 cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have none in the work 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 practices . 40. 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. 41. 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reverence. 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 properly the spheres of law, politics, ethics, aesthetics, economics and technology, even where its administration is institutionalized and it operates as a social orce. 45. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 49. 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 ₹ 12,000/- for costs. I also order the first respondent to pay to the second respondent the sum of ₹ 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. 50. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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