Mainstream - August 14, 2004
Supreme Court and the Mischief of Hindutva
P.P. Bopanna
In the election to the State Legislative Assembly of Maharashtra State held on December 13, 1987 a Shiv Sena candidate representing the Shiv Sena party, which was not a registered party at that time, was elected with the able assistance of the Shiv Sena supremo (whose name is not relevant for this paper) as his election agent. The speeches made by this agent to the people of the constituency from which the candidate stood for election were the main plank on which the defeated candidate approached the Election Tribunal (a sitting Judge of the Bombay High Court) for a declaration that the Shiv Sena candidate’s election be declared void on the ground that he committed a corrupt practice under the relevant provisions of Representation of Peoples’ Act, 1951. Those speeches are quoted verbatim below:
“We are fighting this election for the protection of Hinduism. Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and will remain so.”
“Hinduism will triumph in this election and we must become hon’ble recipients of this victory to ward off the danger on Hinduism, elect Ramesh Prabhoo to join with Chhagan Bhujbal who is already there. You will find Hindu temples underneath if all the mosques are dug out. Anybody who stands against the Hindus should be showed or worshipped with shoes. A candidate by name Prabhoo should be led to victory in the name of religion.”
“We have come with the ideology of Hinduism. Shiv Sena will implement this ideology. Though this country belongs to Hindus, Ram and Krishna are insulted. (They) valued the Muslim votes more than your votes; we do not want the Muslim votes. A snake like Shahabuddin is sitting in the Janata Party, a man like Nihal Ahmed is also in Janata Party. So the residents of Vile Parle should bury this party (Janata Party).”
“All my Hindu brothers, sisters and mothers gathered here. ...Today Dr Prabhoo has been put up as candidate from your Parle. ...But here one cannot do anything at anytime about the snake in the form of Khalistan and Muslim. ...The entire country has been ruined and therefore we took the stand of Hindutva and by taking the said stand we will step in the Legislative Assembly. ...Unless we step forward strongly, it would be difficult for us to live because there would be war of religion. ...Muslims will come. What will you Hindu (people) do? Are you going to throw ‘Bhasma’ (i.e. ashes) on them?... We won’t mind if we do not get votes from a single Muslim and we are not at all desirous to win an election with such votes. ...therefore, there is a dire need of the voice of Hindutva and therefore please send Shiv Sena to Legislative Assembly. ...who are (these) Muslims? Who are these ‘lande’? Once Vasant Dada had called me when he was a Chief Minister. He told me that rest is OK. But asked me as to why I was calling them Lande. But is it correct if they call us ‘Kafer’ (i.e. traitor) then we will certainly call them ‘Lande’. ...They should bear in mind that this country is of Hindus, the same shall remain of Hindus. ...if Shiv Sena comes to power and if the morchas come—first of all (we) shall make them come. Everybody will have to take ‘diksha’ (i.e. initiation) of Hindu religion....”
The Election Tribunal by its judgment dated April 7, 1989 declared the election of the elected candidate void as he and his agent with his consent appealed for votes on the ground of his religion and that they both promoted or tended to promote feelings of enmity and hatred between different classes of the citizens of India on the grounds of religion and community. Consequently his agent, after due notice to him as required under, was also named for commission of corrupt practice and was disqualified to act as an agent for a certain period of time.
Both the returned candidate and his agent filed appeals to the Supreme Court as provided under the Representation of Peoples’ Act, 1951. Ex-facie the speeches to the meanest intelligence amounted to corrupt practice under the relevant Representation of Peoples’ Act which defines what Corrupt Practice is. Those provisions are:
“Sub-sections (3) and (3-A) of Section 123 of the R.P. Act.
“123. Corrupt practices.—The following shall be deemed to be corrupt practices for the purposes of this Act:
(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.
(3-A) 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.”
In Law of Torts, there is a well settled doctrine of Res Ipse Loquitor—the thing itself speaks when the Court records a finding on the question of negligence in a claim for compensation by the injured party. Tort is a quasi-criminal offence. Corrupt practice in terms of the above definitions are also quasi-criminal offences. On this short ground, the appeals filed by the aggrieved candidates ought to have been dismissed as the speeches made by the election agent did not admit of any other interpretation in favour of himself or the disqualified candidate. But when high-profile lawyers appear in the Apex Court and raise constitutional issues which were not raised before the Election Tribunal, the Court is inclined to consider them sacrificing judicial sagacity and experience to judicial exposition of grey areas not required for the disposal of the dispute between the parties. The two main grounds urged before the Supreme Court were:
(5) The public speeches in question did not amount to appeal for votes on the ground of his religion and the substance and main thrust thereof was ‘Hindutva’, which means the Indian culture and not merely the Hindu religion;
(6) The public speeches criticised the anti-secular stance of the Congress Party in practising discrimination against Hindus and giving undue favour to the minorities which is not an appeal for votes on the ground of Hindu religion.
Was it necessary for the Supreme Court to answer these questions when the same were not raised before the Election Tribunal. Assuming they could be raised was it justified in referring to the parliamentary debates on the interpretation of ‘corrupt practice’ in the relevant provisions of Representation of Peoples’ Act? The great constitutional lawyer, a former Advocate General of Mumbai High Court for more than 15 years and author of ‘Constitutional Law of India’ widely read in all the Commonwealth countries, Mr Seervai, in his Third Supplemental Volume quoted Lord Diplock and has observed thus:
If a literal construction would not promote the object of an Act but would produce an absurd result, the Court would avoid such a result if another construction of the relevant provision was possible. In DEVIS & SONS LTD. v. ATKINS [(1977) AC 931] Lord Diplock, in a graphic phrase refused to construe a provision which would convert it “into a veritable rogue’s charter”.
This was followed by a Constitution Bench of the Supreme Court interpreting certain provisions of Prevention of Corruption Act in the well-known Antulay’s case. Justice Desai observed:
that the Corruption Act was enacted to make more effective provision for preventing bribery and corruption. Consequently, the Act must be so constructed as to advance its object and purpose and not to defeat them. If the words of an Act were clear and unambiguous, the Court must give effect to the natural meaning of those words. The question of construction arose only in case of ambiguity or when “the plain meaning of the words used in the Statute would be self-defeating”. (italics supplied) The Court must give effect to the intention of the Legislature keeping in view the mischief which the Act was designed to suppress....
Rejecting the contentions on behalf of Antulay, he said:
Such an interpretation is contrary to all canons of construction and leads to an absurd end product which of necessity must be avoided. Legislation must at all costs be interpreted in such a way that it would not operate as a rogue’s charter. (italics supplied)
With reference to the use of parliamentary debates in the interpretation of statutes (not Constitution), Mr Seervai has observed thus:
“In DEVIS v. JOHNSON” all the Law Lords affirmed that it was a well established and salutary rule that Hansard (Parliamentary Reports) can never be referred to by Counsel in Court and therefore can never be relied on by the Court in considering a statute or for any other purpose. Therefore, it was wrong for a Judge to make any judicial use of the proceedings in Parliament for the purpose of interpreting statutes....
The Supreme Court additionally quoted Encyclopaedia on Religion and Ethics Vol. VI—Dr Radhakrishnan, the former President of India, Monier Williams, Prof Toynbee; unabridged edition of Webster’s Third New International Dictionary of the English Language, Enclopaedia Britannica (15th Edition) and B.G. Tilak’s Gitrarahasya etc., the majority and minority views of the Supreme Court on secularism in the Babri Masjid case, ‘The Need for a Positive Outlook’ by Maulana Wahiduddin Khan.
All the same, the Supreme Court legitimised ‘Hindutva’ by its ruling as under:
.....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 (3-A) of Section 123. It may well be, that these words are used in a speech to promote secularism or to emphasise the way of life of the Indian people and the Indian culture or ethos, or to criticise the policy of any political party as discriminatory or intolerant. The parliamentary debates, including the clarifications made by the Law Minister quoted earlier, also bring out this difference between the prohibited and permissible speech in this context. Whether a particular speech in which reference is made to Hindutva and/or Hinduism falls within the prohibition under sub-section (3) of (3-A) of Section 123 is, therefore, a question of fact in each case.
With this homily, the Supreme Court dismissed the appeals filed by the disqualified candidate and his election agent.
The seeds of mischief, nipped in the bud by the salutory provisions relating to corrupt practice under the R.P. Act, were nurtured by this observation of the Supreme Court which was unnecessary for the disposal of the appeal before it. It should be noticed that the Apex Court was hearing an appeal from the judgment of the Election Tribunal. An appeal no doubt is rehearing of a case tried by the inferior Tribunal. But its scope is limited. The right of appeal is incorporated in the Indian legal system by our law-makers from the British Appellate process. But rehearsing is limited to an examination by the appeal Court of transcripts of the proceedings below and other documents relating to the case, supplemented by the arguments of counsel. (See Final Appeal—A Study of the House of Lords in its Judicial Capacity) That is the reason that as far back as in 1832 the necessity of reforming the judicial House of Lords considered as a Court of Ultimate Appeal in the administration of civil justice was examined. Some observations made in this context are very apposite.
The only ground upon which a suitor ought to be allowed to bring the judgment of one Court for examination before the members of another is the certainty or extreme probability of finding in the latter tribunal more wisdom and learning, more maturity of deliberation, and a greater capacity of sound decisions than existed in the court from which the appeal is to proceed. But as every appeal is of necessity attended with the two great and positive evils of expense and delay, it is the bounden duty of every wise and good government to take all possible care that the court of appellate jurisdiction shall possess those advantages, and that superior capacity for wise and impartial adjudication, upon the presumption of possessing which, the public support and the confidence of the individual suitors is given to the institution.
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