1.

WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGNS BE

BROUGHT UNDER ‘CORRUPT PRACTICES’ WITHIN §. 123 OF RoPA, 1951?

The counsel humbly submits that ‘sectarian appeals during election campaign cannot be brought
under ‘corrupt practices’ within §. 123 of RoPA, 1951.

1.1. That the appeals made by Aladdin Mosai during election campaign is not a ground for
appeal on the basis of community under §. 123 (3) of RoPA, 1951.

Appeal to vote or refrain from voting on grounds of religion, etc. falls under the corrupt practice
specified in clause (3) of §. 123 of the Act. The said provision reads as follows;

“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.”1

Thus, § 123(3) of the Act, positively forbids any appeal to vote or refrain from voting for any
person on the ground of his religion, race, caste, community or language, by making it a corrupt
practice.

In order to see as to whether a particular appeal falls within the mischief of clause (3),
P.B.Gajendragadkar, C.J., speaking for the court in Kultar Singh,2 observed that the document
must be read as a whole and its purpose and effect determined in a fair, objective and reasonable
manner. "In reading such document", the learned Chief justice further observed,

"it would be unrealistic to ignore the fact that when election meetings are held and appeals are
made by candidates of opposing political parties, the atmosphere is usually surcharged with
partisan feelings and emotions and the use of hyperboles or exaggerated language, or the
adoption of metaphors, and the extravagance of expression in attacking one another, are all a
1
Representation of the People Act, 1951, No. 4, §. 123 (3), (hereafter: RoPA).
2
Kultar Singh v. Mukhtiar Singh, AIR 1965 S.C. 141.
part of the game; and so, when the question about the effect of speeches delivered or pamphlets
distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some
allowance must be made and the impugned speeches or pamphlets must be construed in that
light".3
Section 123 (2), (3) and (3A) of the RoPA, were enacted to eliminate from the electoral process
appeals to those divisive factors which arouse irrational passions that run counter to the basic
tenets of the Constitution. 4 Due respect for the religious beliefs 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 might have been made.5

In the present case of Aladdin Mosai, a Sindhustan politician, who is the President and chief of
the ASMA,6 made a speech during one of his rallies that “Mislams account for around 23 % of
the population in the Metropolis. If the budget of SMC (Sindiabad Municipal Corporation) is
around Rs 34,000 crore, then Rs 5,500 crore should have been allotted for the development of
Mislams”

He further stated that “Mislamic population has always been suppressed in terms of proper
representation and development by other higher communities who are holding the power for
decades”.7

In his speech Aladdin just talks about budgetary allocation of Rs. 5,500 crores for
development of Mislamic community, for their proper representation and development so that
this community can have an equal footing in terms of opportunity, and scope for development
in field of employment and education. Which would resultantly increase their representation in
the metropolis.

Aladdin in his speech did not mention any other majority community of the metropolis and

3
Id. at 144.
4
S.Harcharn Singh vs S. Sajjan Singh and Ors. 1985 AIR 236.
5
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra and Ors. 1975, Suppl. S.C.R. 281.
6
Moot Proposition, ¶ Plot-1.
7
Id.
 hence did not bring any enmity or hate between two or more communities. Budgetary
allocation for welfare and development does not contravene the §.123 of RoPA, 1951 as no
statements have been made against a particular community and no one community has been
favoured in expense of other community.

Even if the returned candidate in his speech mentioned other majority communities as
suppressors in terms of representation and development, 8 it is highly doubtful, that enmity and
hatred has been spread between communities.

The allegation of corrupt practice of promotion of feeling of enmity and hatred between
different classes on grounds of community was discussed in the case of Ebrahim Suleiman
Sait v. M.C. Mohammed and Ors.9 In the following case to indicate the effect of the speech
on the minds of the ordinary voters, the election petitioner examined two witnesses. P.W. 2 and
P.W. 4. P.W. 2 P. C. Mohammad said that after listening to the appellant's speech, "the Muslim
voters looked with hatred at those people who stood against them", but when questioned as to
which sentence in the speech attempted to promote the feeling of hatred, the witness referred to
the first sentence and he himself went on to say that "what the sentence really means is that it is
not proper to unite with Jansangh". P. W. 4 Hidre also said in the beginning that the speech was
"intended to destroy communal harmony", but he himself admitted later that the only effect of
the speech was that after the meeting people were saying that "the Opposition League candidate
must be defeated". It seems to us that the speech sought to criticise the wrong policy of the
Muslim League (Opposition) in aligning with parties that were allegedly responsible for
atrocities against the Muslims and not just to emphasise the atrocities.
Finally, it was held by A.C. Gupta, J.
“In our opinion it cannot be said that the speech falls within the mischief of §.123(3A) of the
Act; we have reached this conclusion keeping in mind the well-established principle that the
allegation of corrupt practice must be proved beyond reasonable doubt.”10

Hence it is humbly submitted that speeches made by Aladdin Mosai are not appeals on grounds
of community within the meaning of §. 123 of RoPA, and even if the statements are slightly
8
Id.
9
Ebrahim Suleiman Sait vs. M.C. Mohammed and Ors., AIR 1980 S.C. 354.
10
Id.
 communal, it cannot be proved beyond reasonable doubt that the speech falls within the
mischief of §. 123 of RoPA, 1951.

1.2. That the appeals made by Bhootnath Jogi during his campaign is not ground for appeal
on the basis of religion under §. 123 (3) of RoPA, 1951.

It is humbly submitted that appeals made by Bhootnath Jogi on protection of Mow, issue of Jam
temple and dignity of women does not come under the mischief of §.123 of RoPA.

The Supreme Court in a later judgment in Abdul Hussain Mir v. Shamsul Huda and Ors. 11
reiterated the same principle in Kultar Singh v. Mukhtiar Singh. 12 Krishna Iyer, J., speaking for
the Court observed that "words of wide and vague import like appeal to community, must
receive restricted construction lest law run riot and upset accepted political standards." "The
sharp edge of the appeal, not its elitist possibility or over-nice implication, is the crucial,
commonsense test.13
In the same context the Bombay High Court in the case Damodar Tatyaba Vs. Vamanrao
Mahadik and Ors.14 has further elaborated that in cases of speeches, whether or not a corrupt
practice has been committed, would depend not only on the overall effect and impression, but
also on the emphasis on sentences, words, manner of utterance, conjunction of sentences and
words, etc.15

So, in our present case, it is submitted that statements made by Bhootnath Jogi for Animal
protection of sacred animal cow and taking issue of Jam temple is not a ground for religious
appeal under §. 123(3) of RoPA. It is important to understand the full meaning and context of the
speech and then only come to a conclusion whether the wordings of a speech attract the
provisions of § 123. This principle was mentioned in the case of Ramesh Yeshwant Prabhoo
and Ors. V. Prabhakar Kashinath Kunte and Ors.16

11
Abdul Hussain Mir v. Shamsul Huda and Ors., AIR 1975 SC 1612.
12
Supra note 2.
13
Supra note 11, at 1618.
14
Damodar Tatyaba v, Vamanrao Mahadik. AIR 1991 Bombay 373 at 379.
15
Id. at 379.
16
Ramesh Yeshwant Prabhoo and Ors. V. Prabhakar Kashinath Kunte and Ors., AIR 1996 SC 1113.
“The substance of the speech and the manner in which it is meant to be understood by the
audience determines its nature, and not the camouflage by an artistic use of the language. For
understanding the meaning and effect of the speech, the context has to be found in the speech
itself and not outside it with reference to any other background unless the speech itself imports
any earlier fact in the context of that speech.”17

In the case of Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel and
Ors.18

“The following four passages in Ex. K, a speech delivered by Shambhu Maharaj at Kherwa after
mid;night of February 18, 1967, were objected to :

(1) The Congress says that it has brought happiness and will give happiness in future; but even a
father cannot give happiness to his son, nor can a son give happiness to his father. Giving
happiness rests in the hands of God. But God gives happiness where there is religion. He does
not give happiness to the irreligious.

(2) Formerly there were no famines. Possibly once in 100 years there might be one famine. As
against that nowadays every year there is some natural calamity like a famine. Either there is no
rain or there is frost or there is visitation of locust or there is some disease in the crops and some
calamity or the other is constantly visiting us. The reason for this is that Congress permits
slaughter of 33,000 bullocks everyday. When slaughter of cows is banned, bullocks are allowed
to be slaughtered. In Gujarat 12,000 bullocks are being slaughtered.

(3) Nobody would sit till 12-30 at night to listen to any talks by the Congress-walas. But I have
come to tell the public, which is food of its religion, to elect the Swatantra Party, so that the
slaughter of bullocks might be stopped and all people who are fond of their religion are also
keeping away till 12-30 at night.”19

17
Id. at 1120.
18
Kanti Prasad Jayshanker Yagnik vs. Purshottamdas Ranchhoddas Patel and Ors., 1969 MANU 0263.

19
Id.
The SC, not in agreement with the decision of HC on these said passages by the Appellant, said:

“It seems to us that this is not a fair reading of these two passages. Cow slaughter is not
mentioned in these passages except to say that sow slaughter is banned in Gujarat. The causal
relationship, if any, exists between slaughter of 33,000 bullocks every day and natural
calamities. This, in our view, cannot amount to constitute "corrupt practice" within Section
123(2) proviso (a)(ii). The law does not place any bar on describing a party as irreligious or
saying that because that political party is irreligious natural calamities have resulted because of
its disregard of religion.
We do not find anything objectionable in the third passage because here again it is only an
appeal to elect the Swatantra Party because the people in that party are fond of their religion.”20

Similarly, it is submitted that in the present case of Bhootnath Jogi mere mentioning of animal
‘Mow Protection’21 does not contravene the sub-section 3 and 3A of 123, of RoPA.

It is also submitted that in Article 48 of Indian Constitution which is part of Chapter IV which
deals with DPSPs states that
“Organisation of agriculture and animal husbandry The State shall endeavour to organise
agriculture and animal husbandry on modern and scientific lines and shall, in particular, take
steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves
and other milch and draught cattle”22

The article clearly mentions that State can make laws for prevention of slaughter of cattle
animals,

Article 246 (15th Entry in the State List)

20
Id.
21
Moot Proposition, ¶, Plot-2
22
India Const. art. 48.
Also, according to entry No.15 in the state list, “15. Preservation, protection and improvement
of stock and prevention of animal diseases; veterinary training and practice.”23
This means the state legislature has exclusive power in the enactment of laws banning cow
slaughter. That is why there are different laws banning cow slaughter to various degrees.

In the case of Mohd. Hanif Quareshi v. State of Bihar 24, the petitions challenged slaughter of
certain cattle in three states – Uttar Pradesh, Madhya Pradesh and Bihar. The laws were
challenged on three grounds:

1) the total ban offended Muslims as the sacrifice of cows was sanctioned on a certain day.
2) Such a ban violated the rights guaranteed to butchers under 19(1) (g) of the constitution.
3) That a total ban was not in the interest of the general public
The Supreme Court held that:

1) the total ban on the slaughter of cattle is valid and in consonance with the DPSPs laid down
under Article 48.25
2) A total ban on she-buffaloes and breeding bull or working bullocks as long as they are capable
of being used as milch or draught cattle was also reasonable and valid.
With respect to the first ground of the petition which mentioned that slaughter of cows is
required on a certain day the court held that, “no material on the record before us which will
enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on that day is an
obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the premises, it is
not possible for us to uphold this claim of the petitioners.”26
However, it must be noted that the court left the question of whether “total ban” was within the
scope of the restrictions placed by Article 19 (6).27

Hence it is submitted that statements made by Bhootnath Jogi on Mow protection does not attract
mischief of §.123(3) and (3A) of RoPA.
23
India Const. art. 246, (15th Entry in the State List).
24
Mohd. Hanif Quareshi v. State of Bihar 1959 SCR 629; AIR 1958 SC 731.
25
Supra note 22.
26
Supra note 24.
27
India Const. art. 19 cl. 6