391
CHAPTER -
IX
PRCMOTION OF FEELIMGS OF ENMITY
OR HATRED
INTRODDCTION
There has been a challenge to the secular character
of the Indian Polity for a long period. One can to-day
visualise
such problems
in the
forms of
rfegionalism,
and conununalism. The virus of casteism and communalism
spreads rapidly on the eve of elections when political
parties
appeal
to
and
bank
on
the
caste
and
religion-oriented behaviour of the voters. Section 123(3A)
of the Act makes the
creation of or an attempt to create
feelings of enmity or hatred between the different classes
of our citizens on the ground of religion, race, caste,
community or language as a corrupt practice.
THE LAW
"The promotion of, or attempt to promote, feeling
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
392
the
election
of
that
candidate
affecting the election of
or
for
prejudicially
any candidate".
The essential ingredients of the provision which
constitute a corrupt practice under Section 123(3A) are :
(I)the promotion or attempt to promote feelings of enmity
or hatred between different classes of the citizens of
India; (11) the promotion or attempt to promote enmity or
hatred must be by a candidate or his agent or any other
person with the consent of a candidate or his election
agent; and (III) the object must be for the furtherance of
the prospects of the election of that candidate or for
prejudicially affecting the election of any candidate.
RATIONALE
OF
THE
PROVISION
The spirit of the provision has nicely been summed
up by the Kerala High Court
as : Section 123 of the Act
was enacted to prevent certain forces from interfering
with the free exercise
of electoral rights by an elector,
sub-section 1 to 7 of Section 123 enumerate the different
types of activities that are treated as corrupt practices
for the purposes of the Act. An analysis of sub-section
(1) to (7) of Section 123 shows that the corrupt practice
included in sub-section(3A) has special significance and
3S3
certain particular features which are not possessed by the
activities prohibited by the other sub-sections of Section
123. The evil effect of the activities specified in the
other sub-sections are comparatively short from the point
of view of duration and less harmful to the society at
large. But sub-section (3A) deals with activities which
promote
or attempt
described
to promote
as communal
hatred.
what may
generally
Feelings of
be
enmity, or
hatred between different classes of citizens of India
based on religion, race, caste, community or language do
not, when once created, usually disappear shortly after
elections are over as in the case of other categories of
corrupt practices. Communal
hatred
invariably
inflicts
wounds hard to heal and has the dangerous tendency to
persist
security
for
long
of the
period,
society
undermining
the
peace
as a whole. Since during
and
an
election campaign the most effective methods of propaganda
are invariably used by almost all influential sections of
the
society, creation
of
communal
disharmony
will
be
easier and more effective. Experience has taught that in
this country religious or communal hostility has often led
to retaliation at the instance of the injured party, and
in certain other cases the hatred so created lie dormant
like a valcano which may unexpectedly erupt leading to
394
disastrous
cosnsequences. Consequently,
an
allegation
in ar.
election petition of acts attracting Section 123(3A) of the Act
has to be seriously considered by a court from a broader and
realistic anyle.
Giving the raison d etre of the related provisions as
enumerated in sub-sections (2),(3) and {3A) of the Act, Bey,J.,
of the Supreme Court in a case observed:
It seems to us that S.123, sub-sections (2),(3) and
(3A) were enacted 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,
3
of any civilized political and social order.
The learned judge further held that 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 learned judge continued:
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 herd
instinct and animosities or irrational fears
4
between groups to secure electoral victories.
On an
earlier
occasion
the
apex
Court
rationale of the provision in S.V. Chettiar
Naicker,
V
had
given
the
E.V. Ramas\/arai
as follows:
"The section has been intented to respect the religious
susceptibilities of persons of different religious
395
persuasions
or
creeds
...
very
circumspect in such matters and to pay
due regard to feelings and religious
emotions of different classes of persons
with different beliefs irrespective of
the consideration whether or not they
share those beliefs, or whether they are
rational or otherwise".
JUDICIAL CHECK ON PERNICIOUS CAMPAIGNING
To bring a corrupt practice within the purview of
Section
123{3-A)
mere
attempt
to
promote
will
be
sufficient and actual promotion of feeling of enmity or
hatred is not necessary. The feeling of enmity or hatred
will be between different classes of the citizens of
India,
based
on
grounds
of
religion,
race,
caste,
community or language. In Pritpal Singh V Ranjit Rai , the
Delhi High Court has held that promotion of enmity or
hatred against the ruling government is not a corrupt
practice, as the government cannot be comprehended within
the
expression
India"
"different
classes
of the citizens
of
The Court elaborated that promotion of feelings of
enmity or hatred between different classes of citizens on
grounds of religion, etc., is a corrupt practice. "But",
the Court also held, "it is the right of every candidate
to criticise however angrily, the opposite parties or the
party in power against whom he is fighting the election
and whom he wishes to disloge from power. This is the
39B
brief moment of freedom of which the people make use
during elections."7 The Court concluded that a democratic
government could > not be said to be composed of any one
class of citizen based on the ground of caste, religion,
language or community. It is conterminous with the people
as a whole. It is an authority set over them by themselves
in a democratic set-up.
In a leading judgment Ebrahim Sulaiman Salt V M.C.
9
Mohammad , the Supreme Court spelt out the scope of
Section 123(3-A). The facts were that Ebrahim Sulaiman
Sait, a Muslim League candidate for election to the Lok
Sabha. from Kerala during his election campaign made a
speech in English at Pullikat. A report of
this speech
translated into Mallayalam appeared in the local daily
Chandrika.
The
said
speech
made
certain
allegations
against the Muslim League (Opposition) group referring to
them as anti-religious and accusing them of having helped
the Jan Sangh which had killed many Muslims in Northern
India and at Tellichery and had burnt the Sacred mosque.
It was alleged in the speech that "these people have also
been leading the poor Muslims towards the camp of communal
reactionaries
and
therefore
society
can never
forgive
them." The main allegation levelled against Sulaiman Sait,
the appellant, was that by making this speech he became
397
guilty of promoting feelings of enmity and hatred between
different classes of citizens of
India on grounds of
religion and community as laid down under clause {3A) of
Section 123 of the Act.
While admitting that the reported version of the
speech more or less tallied with the
views expressed by
the appellant, it was contended that a political party
could not be described as a class in the sense in which
the expression "class of the citizens" was used in Section
123(3A) of the Act, and that whatever the appellant had
said in his
speech was directed against a political party
so that the speech did not fall within
the mischief
contemplated in the sub-section. Gupta, j., who spoke for
a division bench, however, was of the following opinion:
A speech, though its immediate target is a
political party, may yet be such as to
promote feelings of enmity or hatred
between different classes of citizens. It
is the likely effect of the speech on the
voters that has to be considered.
On the contention made on behalf of the appellant
that the allegations as regards the killing of Muslims and
the burning of mosques were based on facts as found by the
Commission of Inquiry that investigated the facts relating
to disturbances which took place in Tellichery in 1971,
the learned judge opined that "in our opinion truth is not
398
an answer to a charge of
corrupt practice under Section
123 (3-A). What is relevant is whether the speech promoted
or sought to promote feelings of enmity or hatred as
mentioned in that provision
If it is found that this was
so, then it is immaterial whether what was said was based
on facts or not".
The Court admitted that the tone of
the speech as a whole was communal, and added that "but in
this country communal parties are allowed to function in
politics".12 It proceeded to quote the opinion of
Gajendragadkar, C.J. an Kultar Singh 13 in which he had
said that there were several parties in this country which
subscribed to different political and economic ideologies
but the membership of them was either confined to, or
predominantly held by, members of particular community or
religions. So long as law did not prohibit the formulation
of such parties and in fact recognised
purpose of election
necessary
to
them for the
and Parliamentary life, it would be
remember
that
an
appeal
made
by
such
candidates of such parties for votes might, if successful,
lead to their election and in an indirect way, might
conceivably be influenced by considerations of religion,
race, caste, community or language, the learned C.J. had
further observed.
399
In
Ebrahim Sulaiman Salt,
however,
after
re-
evaluating the testimony of witnesses brought before the
trial court to judge the effect of the speech on the minds
of
ordinary
voters,
the
Supreme
Court
reversed
the
decision of the Kerala High Court and observed 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. "Therefore,
reading the speech as a whole and
well
established
principle
that
keeping in mind the
the
allegations
of
corrupt practice must be proved beyond doubt it could not
be said that the speech feel within the
mischief of
Section 123 (3-A) of the Act"."^^
At this stage it will be relevant to judge the
attitude of the Supreme Court in an earlier
case of
Ziauddm Burhanuddm Bukhari V Brijmohan Ramdass Mehra. 15
Some of the relevant facts of this case have already been
discussed
under
sub-clause(3).
For
purposes
of
consideration under sub-section {3-A), one of the speeches
found to contain objectionable matter was the one in which
the 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
400
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", battle would be fought in every street" as
"the question of religion has arisen". The appellant had
threatended 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 Bombay High Court held
that
these statements amounted to a violation of Section (3-A)
of the Act
calculated
Muslims.
on
to
The
the
ground
promote
Supreme
that Bukhari' s language
hostility
Court,
in
between
appeal,
was
Hindus
accepted
and
this
verdict of the High Court.
Another
speech
containing
objectionable
matter
proved to have been delivered by the appellant was the one
which contained allegations against Chagla's faithfulness
to Muslim religion on the ground that he had advocated
inter-communal
and
inter-caste
marriages
and
that
he
wanted a Hindu to be a member of the Haj Committee. The
appellant had flung a
question addressed to Chagla. It
401
was:
"V^ith
what cheek
representative
of
ours"?
you
In
say
that
addition,
you
are
there
a
were
references to riots in which only Muslims were alleged to
have been killed. There was also the statement that Muslim
personal law was a matter of
religion to Muslims, The
appellant 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 heads".
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".
The supreme Court
held that the High Court was right in construing the
speech as highly inflammatory. It certainly amounted to
the assertion that Muslim religion was in danger and could
only be saved by man like Bukhari and not by Chagla. The
Supreme Court accepted the findings of the High Court that
it amounted to a violation of Section 123(3) and further
observed that it was also struck by Section 123 (3-A) of
the Act.
Beg, j., (later C.J.) who wrote the judgment of the
Court held that the whole outlook revealed by the speeches
of Bukhari was that of a mediaeval
crusader
who had
embarked, on a Jehad for extirpation of the heresy or
402
Kufr
which, in Bukhari's imagination, was represented by
Chagla and his party. The learned judge observed:
We do not consider such speeches to have any
place in a democratic set-up under our
Constitution ... Our democracy can only
survive if those who aspire to become
people's
representatives
and
leaders
understand the spirit of secular democracy.
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 inflamming their blind and disruptive
passions. Heresy hunting propaganda on
professedly
religious
grounds
directed
against a candidate at an election may be
permitted in a theoratic state but not in a
secular republic like ours ... 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.
The Supreme Court accepted the findings of the High
Court
that
the
appellant
was
guilty
of
the
corrupt
practices defined by the provisions under clauses (2), (3)
and (3-A) of Section 123 of the Act, by making the various
speeches closely examined by itself also. On the scope of
the provision. Beg, J., held that what is relevant in such
a case is what is professed or put forward by a candidate
as a ground for prefeering him over another
and not the
motive or reality behind the profession which may or may
not be very secular or mundane. It is the professed or
403
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 hand, 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 it may or may not
offend. It is then
left to the electorate to decide
whether a permissible view is right or wrong. 17
Sometimes
figurative
in
language
election
has
been
speeches,
found.
the
The
whether a figurative language in election
justifiable
or
it
should
also be subject
use
question
of
is
speeches is
to
certain
restraints. One such
issue before the Kerala High
18
Court
was whether the statement by a Muslim League
candidate that the group of leagues were assassins of the
community and they were canvassing votes for R.S.S. and
Jana Sangh who were thirsting for blood of the Muslims
amounted to the
corrupt practice falling under Section
123(A) of the Act. The point at issue was also a cartoon
which depicted Jana Sangh as a pig and suggested that
opposition league members would have to swallow it if they
vote for Marxist party.
404
Namboodiripad, j., who delivered the judgment of
the Court observed that the question is not whether the
speaker intended to use metaphoric language in choosing
the particular expression found in his speech, "but it is
the impression those words are likely to cause in the mind
of an ordinary reader".19 The learned judge accepted that
figurative language is often resorted to for making the
idea more appealing and more effective to the bearer or
the reader as the case may be. "There are also the other
general circumstances and the then subsisting disharmony
between Muslims on the one part and R.S.S. and Jana Sangh
on the other. The reference to R.S.S. and Jana Sangh
people who are thirsting for the blood of the Muslims was
not a mere figurative expression, but was one calculated
to
hatred of the Muslims against those
organisations."20 Thus, in the opinion of the High Court,
the
fan
the
relevant passages of the speech promoted or at any
rate attempted to promote feelings of enmity and hatred
between Muslims on the one part and the R.S.S. and Jana
Sangh people on the other, who undoubtedly constituted a
class within the meaning of Section 123 (3-A).
On appeal
21
to the Supreme Court, Fazal Ali, j.,
who wrote the judgment of the Court accepted the defence
of the appellant that the phrase "Thirsting for Muslims
4on
blood" was used in a figurative sense and not in the sense
of drinking blood. The learned judge observed that what
the speaker meatjt was that as Jana Sangh and R.S.S. were
against the Muslims they should muster all efforts to get
them defeated and teach a lesson to the dissident Muslims
.who had joined the Janasangh Party. According to the Court
there did not appear to be any element
of hatred or
enmity in the extract of the speech of the appellant
reported above. There was no exhortion by the speaker to
the Muslims to attack the Janasangh or the R.S.S. or to do
any kind of harm or violence. "The entire speech is made
against
a political
22
purpose".
background
and
for
a
political
It may be submitted that the Supreme Court has
taken a very casual approach in interpreting the speech
and seeing its impact on the audience. The apex court by
saying that the speech was simply figurative in nature has
not appreciated the background under which Section 12 3
(3-A) was inserted; in this connection the Kerala High
Court was right to say that by the impugned speech what
the respondent did was to set the ball of communal hatred
in motion.
40r.
RELATION BETWEEN ARTICLE 25 & SECTION 123(3) & (3-A)
In a recent pronouncement in Subhash Desai V Sharad
J. Rao
between
the apex Court observed on the relationship
Article
25 of
the Constitution
of
India
and
sub-sections (3) and (3-A) of Section 123 of the R.P. Act,
1951. N.P. Singh, j., speaking for the Court on behalf of
himself, Punchhi and Ahmadi, jj.»
held that when the
framers of the Constitution guaranteed every citizen right
to freely profess, practice and propagate his religion,
that right did not extend to creating hatred amongst two
groups of persons, practising different religions. The
learned judge further observed:
Sub-section(3) and sub-section(3-A) of Section
123, never purport to curb the right
guaranteed by Art. 25 ... They only purport to
curb the appeal on the ground of religion or
propagating religion for creating feeling of
enmity or hatred between different classes of
citizens of India during the election campaign
... Sub-section(3) and (3-A) ... in no way are
in
conflict
with
Article
25 of
the
Constitution - both can co-exist. Article 2 5
enables every citizen of India to profess,
practice and propagate his religion, whereas
sub-sections . . . purport to ensure that an
election is not influenced by considerations
for religion, race, caste,, community or
language. Sub-sections (3) and (3-A) ...
merely prescribe the conditions, which must
be observed if a candidate wants to enter in
Parliament or Legislative Assembly.
407
The Court further
stand
reiterated
for an election is a special
statute and can be exercised on the
that the right
right
created
to
by a
conditions laid down
by the said statute. Keeping in view that the election
should not be contested on the ground of religion, etc.,
and result of an election is not affected by promoting
feelings of enmity or hatred between different classes of
citizens, on grounds of reli9io;?s, etc. ,the framers of the Act
have declared sectarian campaigning as a corrupt practice.
BURDEN OF PROOF
Under the provisions of the Representation of the
People Act, the onus lies entirely on the petitioner to
prove the corrupt practices alleged against the elected
candidate. The necessary
statements of
facts and particulars and the
facts, etc., are to be pleaded
by
the
election petitioner with exactitude and precision. So far
as the elected candidate is concerned, he is merely to
rebut the allegations made by the petitioner in accordance
with the provisions of the Civil Proceudre Code, as far as
practicable. In Sultan_SalauddinOwaisi V Osman Shaweed,23
an allegation of corrupt practice was made in the petition
challenging the election of Sultan Salauddin Owaisi to the
legislative Assembly of Andhra Pradesh. It was alleged
that
he
made
speeches
provocative
of
hatred
rousing
408
religious
sentiments
against
different
classes
of
citizens. Sultan Salauddin filed applications before the
High Court for summoning witnesses as also for amending
his
counter.
The
applications
were
filed
after
the
petitioner had closed the evidence and the High Court had
directed Sultan Salauddin to file a list of witnesses. The
applications
foundation
for
witnesses
counter.
were
were
rejected
the
facts
sought
The High
absence of any
to
Court
specific
on
be
on
the
the
ground
basis
examined
was
of
plea
of
the
that
of
which
no
the
was
laid
in
the
view
that
in
the
out
in
the
alibi
set
counter, Sultan Salauddin could not be permitted to amend
the counter or examine the witnesses. On appeal
to the
Supreme Court, it was observed that in refusing to amend
the
counter
appeared
and
to
provisions
of
have
the
to
summon
overlooked
Act,
the
witnesses,
the
fact
onus
lay
the
High
that
Court
under
entirely
petitioner to prove the corrupt practice alleged
on
the
the
against
the elected candidate. The Court further stated:
It is now well settled by a large catena of
the authorities of this Court that a charge
of corrupt practice must be proved to the
hilt, the standard
of proof of such
allegation is the same as a charge of fraud
in a criminal case.
In the instant case the respondent had taken an express
plea in his counter that he did not make any speech at the
409
places alleged by the election petitioner. He also stated
that tape records or the casette alleged to coantain his
speech were fabricated.
Fazal Ali, j., speaking for the Court observed that
one of the ways of proving this plea could be by showing
that the appellant was not physically present at the places
where the speeches were alleged to have been made as he
was present at that time, at some other place. This was
what the respondent sought to do through the proposed
amendment and by summoning witnesses.
In another leading case, C.H. Mohammad Koya,25 the
allegation that Mohammad Koya was guilty of the corrupt
practice of promoting
ill-will and hatred
between two
classes of citizens, namely, the Jan Sangh and the Muslim
/articles
League, by publishing speeches,/and cartoons in a daily
newspaper of which he was the chief editor was met by him
by stating that his being the chief editor was purely
ornamental and that he did not function as editor, as
understood in Section 1(1) of the Press Law Repeal and
2G
Amendment Act, 1922. The Kerala High Court had found the
allegations
proved,
declared
disqualified
him from taking
his
election
void
part in elections
and
for a
period of six years under the provisions of the Act. On
410
appeal, the Supreme Court found, on a reappraisal of the
evidence addduced, that Mohammad Koya was not engaged in
the control of selection of the matter published in the
newspaper, his name was published as chief editor only for
ornamental purposes and the actual editorship was vested
in another person whose name appeared in the newspaper'as
its editor. In the light of these facts the Court held
27
that the presumption under Section 7 of the Press Act
couid not be
applied to him, Fazal Ali, j . , speaking for
the Court observed:
It is manifest that the petitioner has miserably
failed to prove either that the appellant
was the editor of the paper or that he was
performing
the
functions,
duties
or
shouldering the responsibilities
of the
editor. It is obvious that a presumption
under Section 7 of the Press Act could be
drawn only if the person concerned was an
editor within the meaning of Section 1 of
the Press Act. Where however a person does
not fulfil the coanditions of Section 1 of
the Press Act and does not perform the
functions of an editor whatever may be his
description of designation, the provisions
of
the
Press
Act
would
have
no
28
application.
The learned judge concluded that under such circumstances
the
High
Court
had
no
legal
justification
to
draw
a
presumption against the appellant under Section 7 of the
Press Act in holding that he was proved to be the
editor,
and, therefore, must be deemed to be aware of the articles
published in the said paper.
411
The decision of the apex Court was mainly based on
a re-evaluation of the evidence adduced before the trial
Court. It was concluded that the petitioner had not been
able to prove the corrupt practice alleged against the
appellant. There was no legal or satisfactory evidence to
prove that the speech made by the appellant promoted or
attempted to promote feelings of enmity and hatred between
two classes of citizens, namely, the Jana Sangh and R.S.S.
on the one side and the Muslim league on the other.
Similarly, there was
the
appellant
no reliable evidence to show that
had
any
knowledge
or
had
given
prior
consent to the publication of the cartoon.
Another
point
which
requires
mention
here
in
connection with burden of proof is the term 'Consent'. One
of
the essential
requirements
to bring
a case under
Section 123 of the Act is that the act must have been done
by the candidate or his agent or by any
other person with
the consent of the candidate or his election agent. In the
case of Nara Sxngh Charan Mohanty V Surendara Mohanty 29
the Supreme Court
pointed out that consent or agency
could not be inferred but had to be proved affirmatively
like
any
observed:
other
fact.
In
this
connection
the
Court
412
Consent or agency cannot be inferred from remote
causes. Consent cannot be inferred from mere
close friendships or other relationship or
political affiliation .. . however close the
relationship unless there is evidence to prove
that the p'erson publishing or writing the
editorial
v^as authorised
by
the
returned
candidate or he had undertaken to be responsible
for all the publications, no consent can be
,30
inferred.
The Court also distinguished between
'Consent' and
'Knowledge' and held that the former is a much stronger
word than knowledge because it implies conscious assent.
31
CONCLUSION
Elections
economic
and
in
India
are
political
apparently
contested
programmes. However,
on
actually
elections are won on considerations of religion and caste.
This
leads
animosities
to
communal
tension. To prevent
for political
gain v/as the
idea
arousing
of
behind
the
enactment of Section 123(3A). It has been rightly said that
communal hatred invariably inflicts v/ounds hard to heal and
has the dangerous tendency
to persist
for
long periods,
undermining the peace and security of society as a whole.
Hence use of corrupt practices in elections to secure short
term
be
gains at the cost of the democratic process must
frovmed
democratic
at
by
process
every
v/ill
right
thinking
naturally
citizen.
collapse
if
The
corrupt
practices like appeals to voters on the basis of caste.
413
creed, community, etc., are allov;ed to go unchecked and
unpunished. Justice Beg in Ziayuddin B. Bukhari expressed
the same feeling when he deliberated that our democracy can
only
survive
if
those
who
aspire
to
become
people's
representatives understand the spirit of secular democracy.
Everyone
has
tolerance;
to
our
realise
that
philosophy
"our
preaches
tradition
teaches
tolerance;
our
32
Constitution practices tolerance; let us not dilute it".
The judiciary can, thus, play a significant role in
combating
communal
and
caste
hatred
by
strictly
interpreting the provision of Clause (3-A) of Section 123.
However, a perusal of the cases discussed above shows that
in some cases the apex Court has taken a lackadaisical
approach towards Section 123{3-A). On such example, as
^noted earlier, is
^Ebrahim Sulaiman Salt, for, though the Court accepted that
the tone of the speech as a whole was communal, yet it did
not take any judicial notice under the pretext that in this
country
politics.
communal parties
are
allowed
to
function
in
414
NOTES
1.
2.
3.
4.
4-a.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
AND
REFERENCES
T.K.S.M.A.' Muthukoya Thangal V C.H. Muhammed Koya,
1978 K.L.T. 38.
Id at 3 8 - 3 9 .
Ziauddin Burhanuddin Bukhari V Brijmohan Ramdass
Mehra and others, AIR 1975 S.C. 1788 at 1794.
Ibid.
(1959) SCR 1211: AIR 1958 SC 1032.
AIR 1984 Delhi 198.
Id at 204.
Ibid. In this context the Court quoted Rousseau:
"The English People believes itself to be free it
is gravely mistaken; it is free only during
election of members of Parliament; as soon as the
members are elected, the people is enslaved; it is
nothing. In the brief moment of its freedom, the
English people makes such a use of that freedom
that it deserves to lose it".
Ibid.
AIR 1980 S.C. 354.
Id at 357.
Id at 357 - 358.
Id at 358.
Kultar Singh V Mukhtar Singh, AIR 1965 S.C. 401.
Supra note 9 at 355. In the instant case the Court
also discussed the scope of Section 123(3-A) visa
vis Section 125 of the Act as: It is true that the
act that is called a corrupt practice in Section
123(3-A) is also what constitutes an electoral
offence under Section 125, but to attract Section
123 {3-A) the act must be done by the candidate or
his agent or any other person with the consent of
the candidate or his agent, and for the furtherance
of the election of that candidate or for
prejudicially
affecting the election of any
candidate, but under Section 125 any person is
4]!j
punishable who is guilty of such an act and the
motive behind the act is not stated to be an
ingredient of the offence. There is no reason why
the two provisions, Section 123(3-A) and Section
125, must be read together to ascertain the scope
and effect of Section 123 (3-A). On the other hand
the provisions of Section 125 are not relevant to
ascertain the scope and application of Section
123(3-A).
15
Supra note 3.
16.
Supra note 3 at 1799 - 1800.
17.
Supra note 3 at 1801.
18.
Supra note 1.
19.
Supra note 1 at 39.
20.
21.
Ibid.
C.H. Mohammad Koya
V
T.K.S.M.A. Muthukoya,
K.L.T. 699; (1979) 2 S.C.C.8..
22.
Id at 719.
22-a.
AIR 1994 S.C. 2277.
22-b.
Id at 2284.
23.
AIR 1980 S.C. 1347.
24.
Id at 1348. See also D. Venkat Reddy V
AIR 1976 S.C. 1599; (1976) 2 S.C.C. 455.
Supra note 21.
25.
1978
R. Sultan,
26.
S.l(l) of the Act defines editor as "the person who
controls the selection of the matter that is
published in a newspaper".
27.
Section 7 reads:
"In
any
legal
proceeding
whatever
.. . the
production of ... in the case of the editor, a copy
of the newspaper containing his name printed on it
as that of the editor shall be held (unless the
contrary be proved) to be sufficient evidence as
against the person whope name shall be ... printed
on such newspaper ... that the said person was ...
the editor of every portion of that issue of the
newspaper of which a copy is produced".
Section 7 raises a presumption that a person whose
name is printed in a copy of the newspaper is the
4ir)
28.
29.
30.
editor of every portion of that issue.
presumption may be rebutted by evidence.
Supra note 21 at 714.
(1974) 2 S.C.R. 39.
Ibid.
The
31.
The Bombay H.C., however, has held that the consent
of the candidate can be inferred from the speeches
delivered in support of the candidate by the leader
of a candidate's party in constituency or on
platform along with the candidate. See Sohan Singh
Jodha Singh Kohli V Chandrakanta Goyal, AIR 1991
Bombay. 343.
32.
Per Chinappa
Reddy, j., in Bijoe Emmaneuel
State of Kerala, AIR 1987 S.C. 748 at 758.
V