CASE ANALYSIS OF

MOHD. ASLAM V. UNION OF INDIA

(AIR 1996 SC 1611: 1996(2) SCC 749 (3))

By:

SAMRUDH KOPPARAM

1ST YR, B.A. LL.B

O.P JINDAL GLOBAL LAW SCHOOL

Mob.: +91 7032802900

E-mail: 20jgls-skopparam@jgu.edu.in
 www.probono-india.in

November 25, 2020

ABSTRACT

The following is a brief case analysis of the case titled Mohd. Aslam v. Union of India [AIR
1996 SC 1611]. The case holds as a strong precedent in matters pertaining to ‘corrupt
practices’ during elections and the use of Article 32 of the Indian constitution as a tool
toreview and reconsider the supreme court’s prior judgments. This case has been read,
summarized, and analyzed broadly under the following heads: Introduction, brief facts of the
case, issues of the case, points of contention, legal aspects involved, overturning of
judgments by other judicial institutions,views of the court, and a critically analyzed overview
of the judgment.

Keywords:Article 32, The Representation of People Act, 1951, Section 123(3A),

Secularism, Corrupt practices

INTRODUCTION

The case is a Writ Petition (Civil) No. 135 of 1996.

In this case, the validity of the judgment by the supreme court in Manohar Joshi v. Nitin
Bhaurao Patil & Anr. (1996) 1 SCC 169 was challenged under Article 32 of the Indian
constitution1.

BRIEF FACTS OF THE CASE

The writ petition filed seeks to reconsider the supreme court’s judgment in Manohar Joshi v.
Nitin Bhaurao Patil & Anr. (1996) 1 SCC 169, wherein, an election petition was filed in
the Bombay high court against Manohar Joshi2, a candidate of the BJP-Shiv Sena alliance.
Manohar Joshi secured the highest number of votes i.e 47,737 and was duly elected from the
1
Indian Lawyers, “The institution of litigation cannot be permitted to confer any advantage on a party by
delayed action of courts- supreme court” (Indian lawyers,14th August 2011)
https://indialawyers.wordpress.com/tag/union-of-india/ accessed 21st November 2020.
2
Manohar Joshi v. Nithin Bhaurao Patil & Another, [1996]1 S.C.C 169 at 170.
Dadar Constituency of Greater Bombay to the Maharashtra Legislative Assembly on March
1st, 1990. Bhaurao Patil who secured the 2nd highest number of votes i.e 24,454 filed the
original election petition alleging the commission of corrupt practices under sub-sections (3)
and (3A) of Section 123 of the Representation of the People Act, 1951and sought a
declaration of the election of Manohar Joshi to be void on the grounds of Section 100(1)(b) of
the said act. However, the supreme court set aside the high court’s decree and validated
Manohar Joshi’s nomination3.

The prayer in the writ petition of Mohd. Aslam v. Union of India calls for thereconsideration
of the former judgment and contends, in substance, that the judgment was erroneous.

ISSUES OF THE CASE

1) Can Article 32 of the Indian constitution be used as a medium to assail the correctness
of a judgment?
2) If the alleged statement made by Manohar Joshi, “the first Hindu State will be
established in Maharashtra” be considered a ‘corrupt practice’ under sub-section (3)
and (3A) of section 123 of the Representation of the People Act, 1951?
3) If the spirit of ‘secularism’with respect to the case of S.R Bommai v. Union of India
(1994) 3 SCC 14has been contravened.

A division bench consisting of Justice Jagdish Saran Verma, Navniti Prasad Singh, and K.
Venkataswami reviewed the aforesaid issues in light of rival contentions.

POINT OF CONTENTION

 It was contended in the writ petition that by allegedly stating that, “the first Hindu
State will be established in Maharashtra” the spirit of ‘secularism’ as defined in the
S.R Bommai v. Union of India has been contravened i.e appealing to any religion or
seeking votes in the name of any religion is prohibited under sub-sections (3) and
(3A) of section 123 of the Representation of the People Act, 1951. In furtherance to
these provisions, it treated an appeal to the electorate to vote based on race, religion,
caste, creed, or the use of religious statements as a corrupt practice as it caused
feelings of enmity and hatred between different echelons of the society.

3
Mohd. Aslam v. Union of India & Ors. <https://indiankanoon.org/doc/17310/> accessed on 21st November
2020.
4
S.R Bommai v. Union of India, [1994] 3 S.C.C 1 at 172.
LEGAL ASPECTS

The case revolves around the interpretation of sub-sections (3) and (3A) of section 123 of the
Representation of the People Act, 1951,Article 32 of the Indian constitution, and the concept
of overturning the court's decision.

SECTION 123 (3A) OF THE RPA, 1951

Section 123 of the RPA, 1951 broadly provides the scope for ‘corrupt practices’ and
according to sub-section (3A) of the statute,‘promotion or attempt to promote, feelings of
enmity or hatred between different classes of the society on grounds of religion, race, caste,
creed, or language, by a candidate or his agent or any other individual with the consent of a
candidate or his election agent for the betterment of the prospects of the election of that
candidate or for prejudicially affecting the election of any other candidate shall be deemed to
be guilty of adopting corrupt practices’5.

ARTICLE 32

Article 32 or ‘the right to constitutional remedies’ is a fundamental right enshrined in the

Constitution of India and the words of the father of the Indian constitution, Dr. Bhimrao
Ambedkar- ‘an article without which this constitution would be a nullity- it is the very soul of
the constitution and the very heart of it’ 6. This holds as it provides for enforcement of rights
conferred in Part III of the constitution. It confers the right to move the supreme court by
appropriate proceedings, grants power to the supreme court to issue directions or orders by
employing ‘writs’ and the prerogative of ‘judicial review’ to maintain a system of checks and
balances.

OVERTURNING A SUPREME COURTS DECISION

Article 137 of the Indian constitution allows the supreme court to review or reconsider any
decision rendered by it if it conforms to the rules and provisions specified under Article 145
by way of a ‘Review Petition’. Such a petition can only be initiated at times of gross
5
Section 123 of the Representation of People Act, 1951 <https://indiankanoon.org/doc/70252546/> accessed 21st
November 2020.
6
Nirmalendu Bikash Rakshit, “Right to Constitutional Remedy: Significance of Article 32” [1999] 2379-2381.
miscarriage of justice, blatant errors on the facts of the case or matter of law, discovery of
new evidence, or any other sufficient grounds depending on the discretion granted by the
court. At times the government tries to overturn or sidestep the decision of the court by
introducing a legislative amendment which nullifies the decision of the court, to oversee such
arbitrary actions the supreme court is also empowered with ‘judicial review’- which interprets
statutes and can declare any statue void if it contravenes the basic structure of the
constitution.

OVERTURNING OF JUDGMENTS IN OTHER JUDICIAL

INSTITUTIONS

In common law jurisdictions such as in the United States, the U.S Supreme court can
overturn its own decision, but to do so it either requires another case- to act as a precedent
based on a similar issue or the congress or states can make amends to the law on which the
ruling was premised upon promptinga change in the decision. For instance, the supreme court
in a 5–4 decision in Franchise Tax Board of California v. Hyatt, overturned a previous 1979
decision in Nevada v. Hall without maintaining the stare decisis precedent but merely along
ideological lines. In the contemporary times, the case of Roe v. Wade7- a landmarkjudgment
ruling that the constitution of the U.S protects a pregnant woman's liberty to choose to have
an abortion without excessive government restriction by striking down various abolition laws,
howevervarious legislations of states such as Kentucky, Arkansas, Mississippi, and Louisiana
have enacted ‘trigger laws’ that may overturnthe Roe v. Wade judgment.

In civil law jurisdictions that followthe doctrine of‘legal positivism’, wherein the past
decisions do not usually have the precedential, binding effect that they have in common law
decision-making, providing for a negligible scope of recanting i.eits rulings cannot be
appealed.

VIEWS OF THE COURT

The order authored by Justice Jagdish Saran Verma dismissed the civil writ petition and held
that Article 32 of the Indian constitution is not available to assail the correctness of a decision
on merits or to claim its reconsideration, and to back this he referred to the decision in

7
Roe v. Wade, 1973 U.S. LEXIS 159.
Khoday Distilleries Limited & Anr. vs. The Registrar General 8 which was another
dismissed civil writ petition (803 of 1995) filed under Article 32 challenging the ‘correctness’
of the appellate decision and prayed for the reconsideration of the court’s judgment inAbdul
Rehman Antulay vs Union Of India And Ors. 9, furthermore,it emphasized that in such
cases, where in-substance the challenge is to the correctness of a decision on merits after it
has become final, there can be no question of invoking Article 32 of the Constitution to claim
reconsideration of the decision based on its effect in accordance with the law. Justice J.S
Verma was satisfied to dismiss the petition only on the above grounds,nevertheless, to clear
the apprehensions of the petitioner,the bench reviewed the correlation of the S.R Bommai v.
Union of India judgmentconcerning the case and viewed that the scope of sub-sections (3)
and (3A) of Section 123 of the Representation of the People Act and the construing meaning
of the said clauses was inapposite to the case at hand. Addressing the issue of the alleged
statement, “the first Hindu State will be established in Maharashtra” under the ambit of
‘corrupt practices’ the court reiterated that there had been a misreading in the judgment and
the aforementioned statement cannot be held as a basis for the judgment but rather an opinion
on an assumption as the making of the alleged statement is to be proved. This allegation was
based merely on a police report and Manohar Joshi did not admit tothe making of such a
statement in his speech, in addition, the case ofJamaat-E-Islami Hind vs. Union of
India10was referred to indicate the requisite standard of proof required for proving a corrupt
practice which had not been satisfied in Manohar Joshi’s case. The bench affirmed that the
spirit of ‘secularism’ was intact and the application of the decision in the Manohar Joshi case
as a precedent in other ‘corrupt practice’ cases like Shri Suryakant Venkatrao Mahadik vs.
Smt. Saroj Sandesh Naik (BHOSALE), 1996 (1) SCC 384 11connotes that there is nothing,
in-substance, incorrect in the judgment of Manohar Joshi. Lastly, the bench added that the
deficiency in essence in enacting the statute has to be amelioratedby the legislation so as to
prevent the possible misuse of religion during elections.

OVERVIEW OF THE JUDGEMENT

8
Khoday Distilleries Limited & Anr. vs. The Registrar General, [1996] 3 S.C.C 114.
9
Abdul Rehman Antulay vs Union of India And Ors., [1983] 3 S.C.R 482.
10
Jamaat-E-Islami Hind v. Union of India, [1995] 1 S.C.C 428.
11
Shri Suryakant Venkatrao Mahadik vs. Smt. Saroj Sandesh Naik (BHOSALE), [1996] 1 S.C.C 384 ; Meaning
of ‘Hindutva’ would depend upon the context, use and manner in which it is understood to a reasonable man and
cannot be construed to the ‘Hindu religion’, thus, not in direct sense a ‘corrupt practice’
The court unanimously dismissed the petition as the apprehensions and misgivings expressed
in the writ petition were imaginary and baseless. In furtherance the issues cited were clarified
to prevent any such future uncertainties:

1) It was comprehensibly established the writ petition filed under article 32 of the
Constitution assailing the correctness of a decision of the Supreme Court on merits or
claiming reconsideration cannot be maintainable and also held that the reconsideration
of the final decision of the Supreme Court after review petition is dismissed by way of
a writ petition under Article 32 of the Constitution cannot be sustained- by
referencing the Khoday Distilleries Limited & Anr. vs. The Registrar General case.
2) It was reiterated that thealleged statement made, “the first Hindu State will be
established in Maharashtra” was merely based on a police report and Manohar Joshi
blatantly denied communicating such a statement, thus without the requisite standard
of proof, the phrase does not amount to corrupt practice as prescribed under Section
123(3A) of The Representation of People Act, 1951. The ratio of ‘requisite standard
of proof’ was substantiated by referencing the Jamaat-E-Islami Hind vs. Union of
India case.
3) Lastly, the bench validated that the spirit of secularism remained unscathed and that
the scope of Section 123(3A) of the Representation of the People Act, 1951 and the
elucidated meaning of the said section as stated in the S.R Bommai v. Union of India
case was unsuitable and irrelevant to the case at hand. They also referenced the Shri
Suryakant Venkatrao Mahadik vs. Smt. Saroj Sandesh Naik (BHOSALE) case to
further clarify the essence of ‘interpretation and context’ to amount to ‘corrupt
practices’.

This way the judgmentclarified the issues and points of contention of the case, and by
ascertaining the point of deficiency in the said statute the court also gave an opportunity to
the legislation to rectify the shortcomings thereby preventing possible misuse of religion
during elections.

CONCLUSION

Therefore, the court rightly and unanimously dismissed the writ petition after clarifying the
‘imaginary and baseless’ apprehensions expressed. It upheld and reinterpreted the spirit of
‘secularism’- religious tolerance and equal treatment to all religions, with respect to the case
of S.R Bommai v. Union of India. Additionally, the scope and applicability of sub-section (3)
and (3A) of section 123 of the Representation of the People Act, 1951was elucidated and the
ratio of the standard of proof required to prove ‘corrupt practices’ was laid down with the
precedent ofJamaat-E-Islami Hind vs. Union of India case. Lastly, the court held that Article
32 of the Indian constitution is not available to assail the correctness of a decision on merits
or to claim reconsideration in prior judgments.

SUGGESTIONS

From the deep-rooted analysis of the case, we can affirm that due to Article 32 being used as
a tool by some to assail the correctness of a decision by the court acts as a contributory factor
to the ‘top heaviness experienced by the Indian judiciary’, it aggravates the triable issue in
hand and exhausts energy, expenses involved and consumes considerable time. In other
words, litigants bypass the appropriate judicial proceedings where possible, appealto the
supreme court in greater numbers, and increasingly having those appeals accepted. This
pattern of top-heaviness indicates either a breakdown in precedent given by judges in the
supreme court or precedent following by judges in its subordinate courts, the overall result is
a judiciary whose caseload often looks more like an isosceles trapezoid thana pyramid.

REFERENCES

1) Abdul Rehman Antulay vs Union of India And Ors., [1983] 3 S.C.R 482.
2) Indian Lawyers, “The institution of litigation cannot be permitted to confer any
advantage on a party by delayed action of courts- supreme court” (Indian lawyers, 14th
August 2011) https://indialawyers.wordpress.com/tag/union-of-india/ accessed 21st
November 2020.
3) Jamaat-E-Islami Hind v. Union of India, [1995] 1 S.C.C 428.
4) Khoday Distilleries Limited & Anr. vs. The Registrar General, [1996] 3 S.C.C 114.
5) Manohar Joshi v. Nithin Bhaurao Patil & Another, [1996]1 S.C.C 169 at 170.
6) Mohd. Aslam v. Union of India & Ors. <https://indiankanoon.org/doc/17310/>
accessed on 21st November 2020.
 7) Nirmalendu Bikash Rakshit, “Right to Constitutional Remedy: Significance of Article
32” [1999] 2379-2381.
8) Roe v. Wade, 1973 U.S. LEXIS 159.
9) Section 123 of the Representation of People Act, 1951
<https://indiankanoon.org/doc/70252546/> accessed 21st November 2020.
10) Shri Suryakant Venkatrao Mahadik vs. Smt. Saroj Sandesh Naik (BHOSALE), [1996]
1 S.C.C 384.
11) S.R Bommai v. Union of India, [1994] 3 S.C.C 1 at 172.

BRIEF ABOUT THE AUTHOR

Samrudh Kopparam is a 1st year B.A.LLB (Hons.) student at O.P Jindal Global Law School.
He is also an intern at ProBono India. He has a profound interest in areas of Human rights,
IPR, and Medical Law. He is also associated with ‘The Yugma Network- Environmental
Justice Clinic’ as their Legal Researcher and Content Writer.