DR. DAS RAO DESHMUKHversusKAMAL KISHORE NANASAHEB KADAM AND ORS.

A                         DR. DAS RAO DESHMUKH
                                          v.
           KAMAL KISHORE NANASAHEB KADAM AND ORS.

                                  JULY 14, 1995

B                       [G.N. RAY, FAIZAN UDDIN, JJ.]

          Representation of People Act 1951-Sec. 123(3) and 123(3A)

          "Conupt practice''-Meaning of
c        Election petition filed-Challengi.ng the election of the appellant on the
    grounds of conupt practice~Election campaign conducted on the basis of
    Hindu religi.on-Attempted to promote hatred between the two communities
    namely the Hindus and the Muslim~Aroused communal passions.

D         Speeches delivered in election meeting~To be appreciated, dispas-
    sionately keeping in mind, the context they are made-{]se of hyperbole or
    exaggerated language or adoption of metaphors and extravagence of expres-
    sion in attacking one another-Very common during elections.-Hence must
    consider the real thrust of the speech-Whether intended to generate improper
    passions on the score of religi.on, caste and community-Regard must be had
E   to be substance of the matter rather than mere f omi or phraseology.

           Display of poster~Appeal to vote for appellant for the purpose of
    "teaching a lesson to the Muslims''-Potentially offensive-Likely to bring
    dishamwny between the two communitie~Wh.ether sufficient to prove cor-
    rupt practice.
F
          Legislative Assembly elections were held in the State of Mahar?shtra
    in February, 1990. The appellant, having secured the highest votes was
    declared elected from the Nanded constituency in the State.

G          An election petition was filed by the respondent challenging the said
    election, on the grounds of corrupt practices.

          By its judgment and order, the High Court of Bombay, Aurangabad
    Bench, set aside the said election, holding that the appellant had indulged
    in corrupt practice within the meaning of the provisions of Sec. 123(3) and
H   123(3A) of the Representation of People Act, 1951 (hereinafter referred to
                                         148
                 D.R. DESHMUKH v. N.KN. KADAM                         149

as the "Act").                                                              A

       Aggrieved by the impugned judgment, the appellant preferred an
appeal before this Court on the grounds that (a) The expression "consent"
in relation to corrupt practice as used in Sec. 123(3) and 123(3A) of the
Act may be proved both by direct and circumstantial evidence. The stand- B
ards applied in the criminal law must also be applied while assessing such
circumstantial .evidence. It must not be a mere knowledge of, or connivance
at, a corrupt practice and hence must be proved in the same way as a
criminal charge is proved. (b) In construing the provisions of Sec. 123(3)
and 123(3A) of the Act widest possible latitude ought to be given to the
expression of opinion in the context of democratic discourse so as not to   c
infringe on the Fundamental Rights guaranteed under Art. 19(1)(a) of the
Constitution. Also the restriction envisaged by Art. 19(2) of the Constitu-
tion ought to be strictly construed in such cases. (c) In a plural society
such as ours, debates on issues pertaining to religion, secularism, lan-
guage policy, reservation policies etc. do come up during elections and D
hence if mere references to such issues are construed as falling within the
mischief of Sec. 123(3) of the Act, it would result in stifling the debates on
such contemporary issues. (d) As has been held by this Court in Ku/tar
Singh v. Mukhtiar Singh, AIR (1965) SC 141, documents such as election
posters must be read as a whole and its purport and effect determined in
a fair, objective and reasonable manner. (e) It must not be ignored that E
during elections, the atmosphere is generally surcharged with partisan
feelings and use of exaggerated language and expression in attacking one
another is very common. Hence the speeches delivered and pamphlets
distributed during such election meetings must be construed in that light.
(t) This Court has in Ebrahim Suleiman Sait v. M.C. Mohammed & Another, F
(1980) 1 sec 398 (402-403) held that in several parties, membership is
predominantly held by members of a particular community or religion and
hence the election of candidates of such parties in an indirect way may be
influenced by consideration of religion, race caste, community or language.
(g) Presence of the appellant at the meeting held on February 4, 1990 G
should not be construed as amounting to 'consent', as interpreted by this
Court in Balk1ish11a Samant v. George Femandez, AIR (1969) SC 1201 and
Haji CA. Mohd. Kaya v. T.K.S.MA. Muthukoya'. [1979) 2 SCC 8. The
speech delivered at the said meeting was made by Shri Bal Thakerey and
not by the appellant. Moreover even if it is assumed that the appellant
consented to the said speech, the speech when read as a whole does not H
    150                   SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A   satisfy the requirements of Sec. 123(3) and 123(3A) of the Act despite the
    strong rhetorical language used. (h) Appeal to vote for Hindutva should
    not be confused with appeal to vote only for a member of one community
    namely the Hindus. (i) If the Court prima facie holds that the speech of
    Shri Thakerey amounts to corrupt practice, within the provisions of the
    Act and that the appellant had consented to the same, in absence of a
B
    notice under Se~ 99 of the Act being issued to Shri Thakerey, no finding
    of corrupt practice could have been rendered against the appellant. (j) If
    a person who is not a party to an election petition but is liable to be held
    guilty of corrupt practice a notice under Sec. 99 of the Representation Act
    is to be issued to him and the Court has no discretion in such matter. (k)
c   The meeting held on 9th February, 1990 at Nanded constituency was in
    reality a long discussion with party men and sympathisers and did not
    assume the formal character of a speech but was part of the inauguration
    of the election campaign. (1) As regards the posters used in the election
    campaign, the evidence relied upon by the High Court does not connect
D   the appellant or his election agent with the same. (m) Manifestation of
    popular choice should not be easily interfered with unless_ there is proof
    that a corrupt practice has been resorted to. (n) If strict standards
    required to be established are applied, corrupt practice has not been
    established in the instant case.

E         The respondent resisted the appeal contending that: (a). The appel-
    lant was a nominee of the Shiv Sena. Having attended the election meeting
    on 4.2.1990 and publicly seeking the blessings of Shri Thakerey, the appel-
    lant cannot deny to have subscribed to the speech made by Shri Thackerey
    in the said meeting. (b). It is not the case that he protested to any part of
F   Shri Thackereys speech or even explained h~s own view points to the public,
    thereby indicating that he had indeed subscribed to the statements of the
    speaker in its entirety. (c). There is enough clinching and unimpeccable
    evidence to prove that the meeting held on 9.2.90 in Nanded was an election
    campaign meeting, well attended by a large section of the public, in which
    a number of Shiv Sena and BJP leaders appealed to the public to vote for
G   the appellant on the score of religion. (d). Posters·were displayed during
    the election campaign of the appellant appealing to the public to vote for
    him, to "teach a lesson to the Muslims". Convincing evidence has been led
    to prove that such posters were displayed at the residence of the appellant
    and his election agent and, therefore, it does not lie in the mouth of the
H   appellant to contend that some independent agency without his authority
                        D.R. DESHMUKH v. N.K.N. KADAM                           151

       had displayed such posters for which he cannot be held responsible. (e). A
       The said posts were per se offensive, because alongwith an appeal to vote
       for the appellant, a statement was made therein, to the effect that the
- -,   Muslims, must be taught a lesson. This, in any event, was intended to
       arouse communal passions and bring disharmony between the Hindus and
       the Muslims. Hence, on that score alone, the appellant must be held to be
                                                                                       B
       guilty of corrupt practice under the provisions of the Act. (f). As has been
       held by this Court in S. Harcharan Singh v. Sajjan Singh and Ors., AIR
       (1985) SC 236, the paramount and basic purpose underlying Sec. 123(3)
       of the Act is concept of secular democracy. The said provision was enacted
       to eliminate from the electoral process appeals to divisive factors such as
       religion, caste etc., which give vent to irrational passions. It is, therefore, C
       essential that powerful emotions generated by religion should not be
       permitted to be exhibited during elections, so that choice of the people is
       not coloured in any way. (g). In order to determine whether certain
       adivities come within the mischief of Sec. 123(3), regard must be had to
       the substance of the matter, rather than to the mere form or phraseology. D
       The inhibition of Sec. 123(3) and 123(3A) should not be permitted to be
       circumvented indirectly or by circuitous or subtle devices. (h). An order
       under Sec. 99 of the Act need not be passed simultaneously with an order
       under Sec. 98 of the Act. The proceeding against the returned candidate
       and all those who are parties to the petition should be treated as separate
       and distinct from the proceeding against collaborators.           ·             E
             Dismissing the appeal, this Court

             HELD : 1. In ·view of the next election already held in February, 1995,
       the instant appeal would have become infructuous, but considering the
       finding of the High Court that the appellant had indulged in corrupt            F
       practice under Sec. 123(3) and 123(3A) of the Representation of People
       Act, which has serious consequences, a decision of the appeal on merits is
       necessary. (153-F] .

             2. Speeches delivered in election meetings should be appreciated G
       dispassionately, keeping in mind the context in which they are made. Use of
       hperboles or adoption of metaphor in attacking one party or candidate are
       very common, and the Court should consider the real thrust of the speech
       without labouring to dissect one or two sentences of the speech. (169-C]

             3. In deciding whether a party or their collaborators had indulged        H
    152                    SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A in corrupt practice, regard must be had to the substance of the matter
    rather than mere form or phraseology. (169-D]

            Kultar Singh v. Mukhtiar Singh, AIR (1965) SC 141, referred to.

           4. The use of posters, which made an appeal to vote, in order to "reach
B   a lesson to the Muslims, to say the least, was potentially offensive and likely
    to rouse passion in the minds of the voters on a communal basis. Such an
    appeal was likely to bring disharmony between the Hindus and Muslims
    and offend the secular structure of the country. Use of such poster is by
    itself sufficient to hold that the candidate had indulged in corrupt practice
    under Sec.123(3) and 123(3A) of the Representation Act. [168-G-H, 169-A]
c
          S. It has been fully established by cogent and convincing evidence
    that the appellant had given publicity to the voters by exhibiting posters
    which were per se, highly offensive, potentially vulnerable and likely to
    bring hatred and misunderstanding between the Hindus and the.Muslims.
D   Use of such posters cannot be justified in any manner even by giving
    reasonable latitudes in election speeches. (170-B-C]

          6. In the instant case, for the use and display of posters alone, the
    appellant is guilty of corrupt practice, within the meaning of the provisions
    of Sec. 123(3) and 123(3A) of the Representation of Peoples Act, for which
E   his election is liable to be set aside. It is therefore, not necessary in the
    present case to consider the philosophy of Hindu religion and its tenets of
    tolerance for the purpose of appreciating whether· the appeal was really
    made for Hindutva or not. (166-E]

         7. In the special fact of the case it may not be necessary to .consider
F   the disputed contentions whether the publicity of Shiv Sena and BJP
    during the elections, amounts to publicity by or with the consent of the
    appellant and whether such publicity can be construed as corrupt practice
    under Sec. 123(3) and 123(3A) of the Act. (170-EJ

G           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3169 of
    1991.                                                       '

         From the Judgment and Order dated 18.7.91 of the Bombay-High
    Court in E.P. No. 8 of 1990.

H           Raju Ramachandran, Makrant Adkar, P.H. Parekh, S. Udey Kumar
                  DR DESHMUKH v. N.KN. KADAM (G.N. RAY, J.]                     153

        Sagar and Amit Dhingra for the Appellants.                                     A
             V.C. Kotwal, Girish Desai, Dr. R.B. Masodkar and K.L. Taneja for
        the Respondents.

              The Judgment of the Court was delivered by
                                                                                       B
               G.N. RAY, J. This appeal is directed against the judgment dated July
        18, 1991 passed by the Bombay High Court (Aurangabad Bench) in Elec-
        tion Petition No. 8 of 1991. The respondent No. 1 in this appeal, Sri Kamal
        Kishore Nanasaheb Kadam preferred E~ection Petition No. 8 of 1991
        before the Aurangabad Bench of the Bombay High Court inter alia chal-
        lenging the election of the appellant Dr. Das Rao Deshmukh from Assemb-
                                                                                       c
        ly Constituency No. 170 Nanded in the Maharashtra Legislative Assembly
        held ·on February 27, 1990. Having secured the highest vote in the said
        election, the appellant was declared elected to the Maharashtra State
        Legislative Assembly in the said election from the Nanded Assembly
        Constituency. By the impugned judgment, such election of the appellant         D
        was declared null and void on the ground of corrupt practice indulged by
        the appellant Dr. Das Rao Deshmukh under Section 123(3) and 123(3A)
        of the Representation of People Act, 1951 (hereinafter referred to as the
        Representation Act). The High Court, by the impugned judgment, also
        awarded a cost of Rs. 10,000 against the appellant and in favour of the        E
        election petitioner. It may be indicated here that shortly after the hearing
        of this appeal was concluded, the general election of the Maharashtra State
        Legislative Assembly including the Nanded Assembly Constituency was
        held in February, 1995. In view of such election, the contest as to general
        election in 1990 would have lost, for all practical purposes, any importance
        and this appeal would have become infructuous. But in view of the finding      F
        of the High Court that the appellant had indulged in corrupt practice under
        Section 123(3) and 123(3A) of the Representation Act which has serious
        consequence concerning the appellant, a decision of this appeal on merit
        is necessary.

               In the election petition preferred by Sri Kamal Kishore Nanasaheb       G
        Kadam, the election petitioner alleged that the appellant Dr. Das Rao
.....   Deshmukh was a nominee of Shiv Sena party in the said Nanded Con-
        stituency but he carried out his election campaign on the basis of Hindu
        Religion and for that purpose promoted and attempted to promote com-
        munal hatred between two communities namely the Hindu and the Mus-             H
    154                  SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A lims. The election petitioner gave detailed accounts as to how such cam-
  paign on the ground of religion was carried out by the appellant Dr. Das
  Rao Deshmukh with the active support of his election agents and leaders
  of Shiv. Sena and Bharatiya Janta Party (hereinafter referred to as BJP).
  The last Assembly election in the State of Maharashtra was held on
B February 27, 1990. As per the schedule declared by the Election Commis-
  sion for the 9th General Election for the Legislative Assembly for the State
  of Maharashtra, the nomination papers were to be filed on February 3,
  1990, nominations were to be scrutinised on the very same day. Last date
  for withdrawal of nomination papers was February 7, 1990 and the result
C of election was to be declared on March 2, 1990. The election petitioner
  was the Congress (I) nominee and the appellant Dr. Deshmukh was the
  nominee of Shiv Sena party. The appellant secured 48465 votes and elec-
  tion petitioner secured 33270 votes. Chandrakant Bagve and Vinayak Par-
  tharkar respectively Shakha Pramukh of Shiv Sena and Local President of
  the said Shakha were incharge of· the election campaign on behalf of Dr.
D Deshmukh. Shri Chander Shekhar Sonavane was the election agent of Dr.
  Deshmukh. The election petitioner alleged that the Shiv Sena Party con-
  ducted election campaign by holding public meetings, distributing banners
  and hand bills pamphlets, playing audio and video cassettes, depicting the     .....
  election manifesto as well as the election campaign of Shiv Sena. It was
E alleged  that Shiv Sena party had recorded two cassettes namely 'Avhan and
  Awanan' and 'Ajinkya'. It was alleged that all such campaigns were with
  the consent of Dr. Deshmukh. The election petitioner divided the allega-
  tions in Part II to Part VII of the election petition. The allegations about
  the campaign on the basis of religion were indicated in Part V and Part
  VI. Part VI is the synopsis of the particulars of the campaign which,
F
  according to the election petitioner, were offensive. The classification in
  those parts has been made with reference to various types of document,
  cassettes, both audio and video for facilitating the understanding of the
  allegations of the election petitioner. The organisation of the Shiv Sena
  party was registered as political party on October 29, 1988. According to
G the election petitioner, the main idea of establishing the Shiv Sena party
  was to promote and espouse the cause of Hinduism. The election petitioner
  alleged that the Shiv Sena came out with the message in a daily newspaper
  called "Samna" and the thrust of the said newspaper was that the Hindus
  and the Hindu religion were to danger and that they needed awakening.
H The election petitioner further alleged that in Nanded constituency the said
              D.R. DESHMUKH v. N.k.N. KADAM (G.N. RAY, J.)                  155

    newspaper had wide circulation. The main allegation of the said Shiv Sena A
    party was that Hindu religion was in peril in the hands of the ruling
     Congress (I) party. It was alleged that during the entire tenure of the rule
    by the Congress I, the said party had epoused the cause of Mohammadens
    and Christians and it was required to be checked by constituting 'Hindu
    Vote Bank'. The 'Supremo of Shiv Sena party Shri Balasaheb Thackerey B
    had openly canvassed for capturing political power by indicating that such
    power had to be owned by 'Dharmayudh'. It was alleged that when the
    election of Shiv Sena candidate Dr. Ramesh Prabhoo from the Vile Parle
    Constituency on December 13, 1987 was set aside on the ground that the
    campaign was found to be in breach of Section 123(3) and 123(3A) of the
    Representation Act, Shri Thackrey came out in the newspaper 'Samna' that      c
    Hindus must unite. Hindu religion must grow and this concept should make
    new Hindustan. Similar speeches were also delivered thereafter. It was
    further alleged that on the eye of election of four Shiv Sena candidates at
    the 9th Lok Sabha Elections, the same message was delivered by Shri
    Thackerey and he declared that he would desire to hoist Saffron Flag at D
    Vidhan Bhavan at Bombay. The election petitioner contended that the
    appellant Dr. Deshmukh joined Shiv Sena and adopted the entire election
    campaign carried out by Shiv Sena throughout the State of Maharashtra.
    The said Shri Deshmukh also consented that persons named in para 3.02
    of the election petition would campaign for him. The said list mentioned E
    several names including the names of respondent Nos. 2 to 6 to the election
    petition. In Part IV, the election petitioners gave the area of Nanded


-   Constituency No. 170 and in para 5, the detailed corrupt practice was
    indicated. It was alleged by the election petitioner that on February 2, 1990,
    there was an announcement by the Nanded Shakha of Shiv Sena party that
    the meeting would be addressed by Shri Balasaheb Thackrey on February
                                                                                   F
    4, 1990 at about 1.30 p.m. and an advertisement was published in local
    newspaper 'Godatir Samachar'. It was indicated that the meeting would be
    held at Indira Gandhi Maidan where Dr. Deshmukh would remain present.
    At the said meeting, Dr. Deshmukh was given a welcome by Shri Thackrey
    and Shri Thackrey delivered a lengthy speech in the meeting. Shri Ashok G
    Deshmukh, Nandu Kulkarni and Chandrakant Bagve also addressed the
    same meeting. The report of such meeting and the speeches delivered
    therein were published in 'Godatir Samachar on February 5, 1990. In the
    said meeting, Shri Thackrey made a speech and he made no secret that he
    sought votes on the plank of religion. The entire speech was tape recorded H
     156                   SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A and there were audio and video cassettes of such speech. The synopsis of
     the said speech was that Nanded was the city of Gurdwara and it should
     be kept in mind that Guru of the Sikh religion had given kripan for
     protection of the Sikh religion. He further stated that the Hindus were
     leaving Kashmir and they were killed in Punjab. Shri Thackrey further
     stated that the country was Hindustan and the Hinduism needed protec-
B    tion. Referring to the political leaders like Sharad ·Pawar and Shri V.P.
     Singh, Shri Thackrey stated that they had only praised the Mohammadens
     and Shri V.P. Singh visited Shahi-Imam after th.e elections but he did not
     care for Hindu votes. Shri Thackrey warned that Hindus could not be
     insubordinated are neglected and at the Assembly elections they would fly
c    the Saffron flag and rule in the State of Maharashtra. He stated that he
     had the blessings of Tulja Bhavani, Goodess of Tuljapur and Goodess of
     Shivaji Maharaj. He also indicated that the history was twisted and the facts
     which would not be liked by Mohammadens had been altered. Shri Thack-
     rey referred to a book written by Dr. Balasaheb Ambedkar "Ridders in
D    Hinduism" published by the Government where Lord Rama and Lord
     Krishna had been maligned. It was further stated by the election petitioner .
     that Dr. Deshmukh also addressed by saying that it was a golden day at
     Nanded because the feet of Balasaheb Thackrey had touched the soil of
     Nanded.. The strength of Shri Balasaheb Thackrey should be the strength
     of Hindustan and the Saffron flag should be hoisted at Vidhan Bhavan.
                                                                                      ...
E
            With reference to 'Avhan and Awhan' the video tapes, it was con-
     tended by the election petitioner that in the said video tapes powerful
     exhortation and inducement to the voters to vote on the ground of religion
     had been made. There was an appeal that if a Muslim would try to destroy
     Hinduism in Hindustan public would not keep quiet but take out the
F
     intestines like that of Afzulkhan. It was also alleged that Muslims were loyal
     to Pakistan and Urdu could not be the national language of Hindustan. An
     appeal was also made to the fact that the Rulers would visit Muslims and
     Mosques but not the Hindu temples and the Hindus should therefore
     constitute a Vote Bank and should hoist Saffron Flag on the Assembly
·G   building. The election petitioner alleged that the said tapes were circulated
     in Nanded and other places.

          The election petitioner also alleged that on February 9, 1990, the
     inauguration meeting for commencement of the election campaign of Dr.
H    Deshmukh was held at Shiwaji Maidan Stadium at Nanded. Shri
               D.R. DESHMUKH v. N.K.N. KADAM [G.N. RAY, J.]               157

     Chandrakant, Shri Kirtane, Shri Nandu Kulkarni and others spoke. All of A
     them championed the cause of Hinduism. The details of their speeches
-.   would be seen in the video cassettes. It was also alleged that there had
     been publicity through posters and pamphlets showing that the voters were
     asked to vote on the basis of religion. On the car of election agent of Dr.
     Deshmukh, Shri Sonwane, a poster was displayed which called upon the B
     voters to vote iti the name of Hindu religion. Such posters wete displayed
     at various places at Nanded. The election petitioner alleged that the
     materials used for election campaign including the speeches delivered by
     the speakers of Shiv Sena and BJP for and on behalf of Dr. Deshmukh
     clearly amounted to corrupt practice under Section 123(2) and Section
     123(3A) of the Representation Act.                                          C

            Dr. Deshmukh contested the election petition by filing a written
     statement (Ex.7) inter alia denying the allegations made in the election
     petition about the corrupt practice alleged by the election petitioner. Dr.
     Deshmukh contended in the written statement that he was a candidate of D
     Shiv Sena at the last Assembly Elections and that Shri Sonwane was his
     election agent, but he denied that Shri Chandrakant Bagve or Vinayak
     Partharkar were incharge of his election campaign. He also stated that the
     details of the speeches and the posters had not been furnished by the
     petitioner and for want of specific particulars of such allegations, the
     petition should be dismissed. Dr. Deshmukh contended that Shiv Sena was E
     a recognised political party having its own constitution which was in
     keeping with principle of socialism, secularism and democracy. It was
     stated that the views expressed in 'Sarona' newspaper by Shri Thackrey
     were his-personal views. Dr. Deshmukh also stated that the views expressed
     in 'Sarona' could not be attributed to Dr. Deshmukh as the views sub- ..,.F
     scribed by him. Dr. Deshmukh also contended that the elections of other
     candidates of Shiv Sena and BJP party had not been challenged on the
     ground of election campaign on the score of religion. Such fact according
     to Dr. Deshmukh, would amply demonstrate that the campaign by Shiv
     Sena and BJP party had not been based on religion. He also denied that
     the propaganda machinery of the Shiv Sena was engaged on his behalf with G
     his consent or with the consent of his election agent. Dr. Deshmukh
     contended that only the statements which were contained in election
     manifesto of the party should be looked into and the ideology of Shiv Sena
     or that of Shri Thackrey was not relevant for deciding the election
     petitioner Dr. Deshmukh admitted that he was present at the meeting held H
                                                                                  \




    158                  SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
                                                                                  '
A   at Nanded on February 4, 1990 called by Shiv Sena and he had accorded
    welcome to Shri Thackrey and touched his feet but such fact would not
    mean that whatever Shri Thackrey would state as his personal view would
    be the election campaign of Dr. Deshmukh. Dr. Deshmukh did not admit
    the headlines appearing in 'Godatir Samachar' on February 5, 1990 and he
    had denied the other parts of speeches of Shri Thackrey as published in
B
    the newspaper and contended that Shri Thackrey did not treat the Muslims
    as anti Hindus. Dr. Deshniukh pointed out that on the other hand, Shri
    Antualay and Mohd. Azaharuddin had been accepted as true Indians. He
    pointed out that Shri Thackrey had criticised those mohammondens who
    were anti-Indians or anti- nationals. Dr. Deshmukh also contended that the
C   cassettes of 'Avhan' and 'Awhan' did not contain any insinuation asking the
    voters to vote on the basis of religion and no part of the speeches did
    promote illwill or hatred between the two communities.

          Coming to the meeting held at Narsi, Dr. Deshmukh stated that he
D was not present at the meeting and anything stated in such meeting was
    not binding on the petitioner and his election agent. As regards audio and
    video cassettes. Dr. Deshmukh stated that report of such speeches did not
    reflect the true contents of the speeches and therefore the same should not
    be looked into by the Court.

E        Coming to the alleged propaganda made by Dr. Deshmukh and his
  election agent through posters, publication Etc., Dr. Deshmukh stated that
  such posters and publicati<:>ns has not been displayed or published with the
  consent of Dr. Deshmukh and there was no evidence to show that such
  posters or publications were made at the instance of Dr. Deshmukh. With
F reference to the Annexure A. Dr. Deshmukh stated that the although the
  said annexure was issued in the name of Dr. Deshmukh but in fact the
  same did not bear his signature and as such the same could not be treated
  as issued by Dr. Deshmukh. He also contended that the car in which
  offensive posters were stated to have been displayed, did not belong to his
G election agent and he was not responsible for ·anything displayed in such
  car. Dr. Deshmukh stated that there were internal disputes of Congress I
  party and the people did not vote for the Congress I party. It was also
  stated that the election petitioner was the Chairman of the University
  Centre at Nanded and he was prosecuted for various offences under
  Sections 520, 506 and 467 of Indian Penal Code. The people also did not
H like the petitioner's seeking permission to start Engineering and Architec-
          D.R. DESHMUKH v. N.K.N. KADAM [G.N. RAY, J.]                159

tural College at Nanded known as College of Engineering and Architec- A
ture. It was contended that the voters believed that the election petitioner
was acting only for his personal gains and he was not concerned with the
welfare of the voters. It was for such reasons that they did not vote for the
election. petitioner. It may be stated here that the respondent Nos. 2 to 5
in the election petition were served with notice but they did not appear B
and contest the petition and the election petition was therefore decided ex
parte against them. Respondent No. 6 although appeared through an
Advocate, did not file any written statement.                 ·

       On the pleadings of the parties, 13 issues were framed by the learned
Judge. The learned Judge, however, answered Issue No. 4:- "whether the C
petitioner proves that respondent No. 1 utilised the propaganda machinery
of Shiv Sena party", in the negative. The learned Judge, however, answered
issue No. 6 and Issue No. 8 in the affirmative only to the extent indicated
in the judgment. The learned Judge also answered Issue No. 10 to the effect
"whether the petitioner proves that respondent No. 1, his election agent D
and other persons named in the petition with the consent of respondent
No. 1 and his election agent, carried out election campaign on the basis of
religion and also with a view to promote religious hatred between different
class of citizens and thus <:;ommitted corrupt practices under Section
123(2), (3), (3A) of the Representation People Act?", in the affirmative.
The learned Judge by the impugned judgment held that in view of such E
corrupt practice, the election of Dr. Deshmukh was liable to be set aside.
As aforesaid, the learned Judge also awarded a cost of Rs. 10,000 against
Dr. Deshmukh and in favour of_ the election petitioner.

       Shri Ramachandran, learned Advocate appearing for Dr. Deshmukh, F
has submitted that the expression "consent" in relation to a corrupt practice
as used in Section 123(3) and 123(3A) of the Representation Act has been
interpreted by this Court as not mere knowledge of or connivance at a
corrupt practice. For such contention, the learned counsel has referred to
decision of this Court in Saman.t N. Balkrishn.a Etc. v. George Fernandez G
and Others Etc., AIR (1969) SC 1201 at 1221-22. He also referred to
another decision of this Court in Haji C.H. Mohammed Koya v. T.KS.MA.
Muthukoya, (1979) 2 SCC 8. Mr. Ramachandran has contended that while
consent n;iay be proved not only by direct but also by circumstantial
evidence, the same standard is to be applied in assessing such circumstan-
tial evidence as it is applied in Criminal Law, namely, that the circumstan- H
    160                   .SUPREME COURT REPORTS [1995) SUPP. 2S.C.R.

A ces must point unerringly to only one conclusion and must not be consistent
  with any other explanation or hypothesis. He has submitted that this Court
  in Balakrishna Samant's case (supra) has indicated that although the trial
  of an election petition is conducted in accordance with the Civil Procedure
  Code, the corrupt practice must be proved in the same way as a criminal
B charge is proved. Mr. Ramachandran has also submitted that in construing
  the provisions of Section 123(3) and 123(3A) of the Representation Act,
  the widest possible latitude ought to be given to the expression of opinion
  in the context of democratic discourse so as not to infringe on the freedom
  of speech and expression guaranteed by Article 19(1)(~) of the Constitu-
  tion of India. He has submitted that there is no doubt that freedom of such
c speech is subject to reasonable restrictions as envisaged by Article 19(2).
  Mr. Ramachandran has submitted that the restriction ought to be strictly
  construed. He has also submitted that the expression used in Section 123(3)
  of the Representation Act is "on the ground of religion, race, caste,
  community or language". Mr. Ramachandran has submitted that the said
D Section does not use the words with reference to religion, race, caste etc.
  (emphasis added) but the expression used, namely, 'on the ground of
  would require that an appeal be made for votes by speeches or propaganda
  which tell a voter that he is.not true or loyal to his religion, caste etc. unless
  he votes for a particular person. lf mere references to religion, community,
E caste etc. are construed as falling within the scope of Section 123(3) of the
  Representation Act, it would result in stifling debate on issues which have
  contemporary relevance and do come up at the time of elections. In a
  plural society such as ours, such issues pertain not only to religion and
  secularism but also lc.nguage policy, reservation policies etc. Mr.
  Ramachandran has further submitted that in construing a speech made or
F
  a· poster published in the course of an election, the widest latitude ought
  to be given. Referring to the decision of this Court in Ku/tar Singh v.
  Mukhtiar Singh, AIR (1965) SC 141, Mr. Ramachandran has submitted that
  this Court has held that the principles which have been applied in constru-
  ing such a doc~ment as an election poster are well settled. The document
G must be read as a whole and its purport and effect determined in a fair;
  objective and reasonable manner. In reading such documents, 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 atmos-
  phere is usually surcharged with partisan feelings and emotions and the use
H of hyperboles or exaggerated language or the adoption of metaphors and .
          D.R. DESHMUKH v. N.KN. KADAM [G.N. RAY, J.]                    161

the extravagence of expression in attacking one another are all parts of the A
game and so when the question abut the effect of speeches delivered or
pamphlets distributed at election meetings is argued in the cold atmos-
phere of a judicial chamber, some allowance must be made and the
impugned speeches or pamphlets must be construed in that light. Mr.
Ramachandran has further submitted that this Court has indicated in the
                                                                                 B
said decision that there are several parties whose membership is either
confined to or predominantly held by members of particular communities
or religions and that an appeal made by such candidates of such parties
for votes may, if successful, lead to their election and in an indirect way
may be influenced by consideration of religion, race, caste, community or
language. So long as the law recognizes such parties for the purpose of C
election and parliamentary life, this situation cannot be avoided. Mr.
Ramachandran has submitted that the aforesaid view of this Court has
been reiterated in the case of Ebrahim Suleiman Salt v. M.C. Mohammed
and Another, [1980) 1 SCC 398 at 402-403. In Suleiman's decision, the
speech to the effect that "he made it very clear that the anti religious parties D
must not entertain the faint hope of securing the votes of any Muslim, in
whose head the Islam's blood was flowing", was not held to be offending
under the provisions relating to corrupt practice. Mr. Ramachandran has
also submitted that if a person is not a party to an election petition but is
liable to be guilty of a corrupt practice, a notice under Section 99 of the
Representation Act is to be issued to such person and the Court has no E
discretion in the matter. For the aforesaid contention, reference to the
decision of this Court in D.P. Mishra v. Kamal Narayan Shanna and
Another,· AIR (1970) SC 1477 at 1489 has been made by him.

        Coming to the correctness of the factual finding of the High Court F
 relating to the commission of corrupt practice, Mr. Ramachandran has
 submitted that the meeting of February 4, 1990 at Nanded was addressed
 by Shri Thackrey. Such a meeting was admittedly organised by Shiv Sena
 party. The record discloses that it was in the said meeting on February 4,
 1990 that the appellant was officially declared as the Shiv Sena candidate. G
 The last date for withdrawal of nomination papers was upto February 7,
 1990 and it was open to the party to revoke applicant's nomination as party
 candidate upto that date. Mr. Ramachandran has submitted that in such a
 situation, it would be wholly unrealistic to expect that the appellant would
·be in a position to repudiate or dissociate himself from particular portions
 of the speech of the leader of Shiv Sena party even though he might not H
    162                  SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A have agreed with all that was said in the course of such a long speech or
    with the choice of words in the speech. Mr. Ramachandran has submitted
    that the presence of the appellant at the meeting of February 4, 1990 should
    not be construed as amounting to consent as interpreted by this Court in
    Balaklishna Samant's case (supra) or decision in Mohammed Koya's case
    (supra). Mr. Ramachandran has also submitted that in the written state-
B   ment, the appellant also contended that he was also not present throughout
    the meeting. Mr. Ramachandran has further submitted that even if it is
    assumed that he consented to the speech delivered in the said meeting of
    February 4, 1990, the speech read a a whole does not satisfy the require-
    ments of Section 123(3) and 123(3A) of the Representation Act despite
c   the strong and rhetorical language used in the said speech. The said speech
    does not appeal on the ground of religion nor does it promote feelings of
    enmity or hatred on grounds of religion. He has also submitted that even
    if the Court prima facie comes to the finding that the said speech of Shri
    Thackrey amounts to corrupt practice within the meaning of Section 123(3)
D   and 123(3A) of the Representation Act and the appellant had consented
    to such speech of Shri Thackrey, it was an obligation of the Court to issue
    a notice under Section 99 of the Representation Act to Shri Thackrey and
    no finding of corrupt practice could have been rendered against the
    appellant in the absence of a notice under Section 99 of the Representation
    Act.
E
         Coming to the speech delivered in the meeting held on February 9,
   1990 at Nanded, Mr. Ramachandran has submitted that the said meeting
   was "Shubharambh" ceremony when the appellant inaugurated his cam-
   paign two days after the last date for withdrawal of nominations. Admit-
F tedly, no permission for a regular meeting was granted by the police
   authorities. According to the person who took a video recording of the
   meeting, there was slogan shouting but no speeches were made and ac-
   cording to the appellant's witness there was no speech delivered in the said
   meeting. Mr. Ramachandran has submitted that whatever had been spoken
   at the said meeting were in reality long discussion with party men and
G sympathisers and it did not assume the formal character of the speech but
   was part of the inauguration of the campaign for the election. The leaders
  ·of the Shiv Sena and also representatives of the BJP which was a partner
   of the Shiv Sena in the election contest were present and the presence of
   the appellant cannot amount to consent CJ.S interpreted by this Court in the
H decisions referred to hereinbefore. Mr. Ramachandran has also submitted
          D.R. DESHMUKH v. N.K.N. KADAM [G.N. RAY, J.]                163

that even if it is assumed that the appellant has consented to the said A
statement attributed to the various speakers at the said inauguration of
election meeting, none of the so called offending portions set out in para
5.04 at pages 212-216 of Vol. I falls within the scope and ambit of Sections
123(3) and 123(3A) of the Representation Act. Mr. Ramachandran has
also submitted that the 'Godatir Samachar' publication was made on the
                                                                             B
basis of the report made by the reporter who according to his under-
standing of the portion of the speech recorded the same in his own
language. He has further submitted that the newspaper publication relied
on by the election petitioner for the purpose of offensive part of the
speeches delivered at the meeting should not be taken into consideration
as being inadmissible or not proved. The learned Judge unfortunately erred  c
in relying on the newspaper publication in basing impugned decision.

       Coming to the allegation about publishing the material, namely,
advertisements, pamphlets, posters etc. a alleged in the election petition
amounting to corrupt practice under Section 123 and 123(3A) of the D
Representation Act, Mr. Ramachandran has submitted that only such
material as can be directly attributed to the appellant or his election agent
may be taken into account. He has also submitted that there has been clear
finding by the High Court in respect of issue no. 4 that it was not proved
that the appellant used the machinery of Shiv Sena party. On an analysis
of all the material attributable to the appellant and his election agent as E
summarised in the discussion under Issue no. 6, Mr. Ramachandran has
submitted that none of them read as a whole in the context of the tests laid
down by this Court for adjudging speeches, publicity material etc. can be
said to offend Sections 123(3) and 123(3A) of the Representation Act. An
offending sentence namely "teach the Muslims a lesson" is to be found in F
posters of Ex.O series. With regard to the said posters the evidence relied
upon by the High Court does not connect the appellant or his election
agent with the same. The evidence of P.W. 20 Ramesh Rasal who in
addition to being Executive Editor of 'Godatir Samachar' is a partner of
Ramesh Offset Press, does not connect the appellant or his agent with
these particular posters. Evidence in the form of receipts from Ramesh G
Offset Press is still not evidence in regard to these particular posters and
therefore the proof has not fulfilled the standard of requirement of proof
in a criminal case. Mr. Ramachandran has submitted that the manifestation
of popular choice should not be easily interfered with unless there is proof
that a corrupt practice has been resorted to. Mr. Ramachandran has also H
    164                  SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A   submitted that if strict standards required to be established are applied
    corrupt practice has not been established in the instant case_. The impugned
    judgment of the High Court is speculative and lies in the realm of conjec-
    tures. Accordingly, the same should be set aside by allowing this appeal.

B        Mr. Kotwal, the learned Senior Counsel appearing for the election
  petitioner Shri Kamal Kishore Nanasaheb Kadam has seriously disputed
  the contentions made by Mr. Ramachandran. He has submitted that the
  appellant Dr. Deshmukh filed his nomination paper as a nominee of Shiv
  Sena-BJP alliance. It is immaterial whether the date for withdrawal was not
  over when the election meeting of Shiv Sena was held at Nanded on
c February 4, 1990. According to Mr. Kotwal, it cannot be reasonably con-
  tended that the appellant who filed the nomination paper as a nominee of
  Shiv Sena would deny that although he attended the meeting on February
  4, 1990 and sought the blessing of Shiv Sena Supremo, Shri Thackrey, he
  did not subscribe to the appeal for voting in the election by the said
D Supremo of Shiv Sena. Mr. Kotwal has submitted that when election
  campaign meeting of the Shiv Sena was held and the appellant as· a
  nominee of Shiv Sena attended the said meeting and publicly sought the
  blessings of Shiv Sena Supremo and listened to the address made by him,
  by his conduct, he made it quite clear before the public that he had
  subscribed to the views expressed in the said meeting by the Shiv Sena
E Chief. It is not the case of the appellant that he had protested to any part
  of the speech delivered by Shri Thackrey or even explained his own
  viewpoints to the members of the public present thereby indicating that he
  had subscribed only to the election manifesto of Shiv Sena and not to any •
  other statement of the speakers in the said meeting beyond such election
F manifesto. Mr. Kotwal has also submitted that the meeting of February 9,
  1990 was the meeting organised by the appellant himself so as to formally
  start his election campaign. Such meeting was termed. as 'Shubharambh'.
  Mr. Kotwal has stated that although police had not given permission to
  hold a formal public meeting, such election campaign meeting had in fact
G been held in a conspicuous public place at Nanded and it has transpired
  from evidence that a large nut~ber of person had attended the said
  meeting. In the said meeting, the local Shiv Sena and BJP leaders ad-
  dressed and they appealed to vote for Dr. Deshmukh mainly on the score
  of religion. In the written statement, the appellant stated that no meeting
  was held on February 9, 1990. In the alternative, it was contended in the
H written statement that the appellant had not asked the speakers to speak.
          D.R. DESHMUKH v. N.K.N. KADAM [G.N. RAY,J.)                  165

Mr. Kotwal has submitted that such contention made in the written state- A
ment, has been proved to be false by convincing and unimpeachable
evidences adduced in the case. The editor of 'Godatir Samachar' (P.W. 20)
the video Photographer, Shri Malwe (P.W. 30) and the Police Sub-Inspec-
tor Mohd. Abdullah Khan (P.W. 8) had proved beyond an iota of doubt
that the appellant himself was present in the election meeting of February B
9, 1990 when the speeches were delivered by Shri Nandu Kulkarni, Shri
Sunil Nerlakar, Shri Chandrakant Mahski, Sri Ganesh Kirtane and others.
In the advertisement given for the meeting termed a 'Shubharambh' to be
held on February 9, 1990, it was specifically mentioned that Shri Ganesh
Kirtane, Shri Chandrakant Sonwane, Shri Nandu Kulkarni and a number
of other people would remain present. Shri Chandrakant Mahski addressed C
the said meeting by stating that the hindu flag would fly on the Maharashtra
Assembly. Shri Sunil Nerlakar also spoke in the said meeting and said that
nothing was done for Hindus but hindus had been ridiculed. He gave a
warning that those who would insult hindus would not be tolerated by the
hindus because the nation was a nation of hindus. He also stated that on D
the basis of their own strength the hindus were contesting the election. Mr.
Kotwal has submitted that although policies of the ruling Congress I party
were criticised but the speakers made it quite clear that hindus should unite
for the cause of the hindus and would vote for the appellant Dr. Deshmukh
so that the interest of hindus should be protected. He has submitted that E
such statement obviously refers to an appeal on the score of hindu religion
and the passion on the basis of religion was sought to be roused amongst
the hindu voters with an appeal to unite to protect the interest of one
community, namely, the hindus. He was submitted that such speech, if
considered in the proper perspective, must be held to have offended the
                                                                              F
sentiments of the followers of other religion and was intended to rouse the
communal passion on the score of religion. Mr. Kotwal has also referred
to one of the specimen of the posters, being Ext. 0.20. In the said poster,
it was indicated that to protect hinduism and hindu religion the valuable
vote should be cast in favour of the Shiv Sena-BJP alliance candidate Dr.
Deshmukh and such vote should be cast to "teach a lesson to muslims" G
(emphasis added). Such posters were exhibited in a number of places in
the town of Nanded. Convincing evidence has been led that such posters
were displayed at the residence of election agent and also at the residence
and chamber of Dr. Deshmukh. In the car used by election agent of Dr.
Deshmukh, such poster was also displayed. Such poster was also displayed H
    166                   SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A on the sign board of Shiv Sena Shakha and other public places Mr. Kotwal
    has contended that the partner of Ramesh Offset Press, Shri Ramesh Rasal
    (P.W. 20) has clearly stated that the appellant and his election agent placed
    orders for the printing of such posters. He has submitted that although Mr.
    Ramachandran, the learned counsel for the aP.pellant contended that Shri
    Rasal did not specifically give evidence that Dr. Deshmukh himself had
B   placed orders for such posters or paid price for printing of such posters,
    such submission should not be accepted. Mr. Kotwal has submitted that if
    in an election such posters are allowed to be displayed at various public
    places and also at the residence of the appellant and in the car where the
    election agent of the appellant had been moving for canvassing the vote for
c   the appellant, the appellant should not be permitted to contend that some
    independent _agency without his authority had displayed such posters and
    he should not be held responsible for such publicity on account of the said
    posters. Mr. Kotwal has submitted that the poster is offensive per se
    because along with the appeal to vote for Dr. Deshmukh a statement was
D   made in the said poster that the muslims should be taught a lesson. Such.·
    poster, in any event, was intended to bring disharmony between the two~
    communities, namely, the hindus and the muslims and was definitely in- ':
    tended to arouse passion on a communal basis in the minds of the voters.
    The said poster was intended to bring hatred between the two com-
    munities, namely, the hindus and the muslims. He has, therefore, submitted
E   that on the score of displaying the said poster ~ithout any other evidence
    about corrupt practice, the finding of the High Court that the appellant
    was guilty of corrupt practice under Section 123(3) and 123(3A) of the
    Representation Act should be upheld and no interference is called for in
    this appeal. Mr. Kotwal has also made elaborate submissions on the other
F   offending advertisements and also the wall paintings for the purpose of
    contending that all such materials were solely intended to bring disharmony
    between the two communities and to make an appeal on the score of
    religion so that the hindus should vote only in favour of the Shiv Sena-BJP
    candidate, Dr. Deshmukh who would safeguard the interest of hindus.

G         Mr. Kotwal has submitted that Section 123 has undergone a change
    after the amendment in 1961. Prior to such amendment iD. 1961, Section
    123 of the Representation Act only prohibited systematic appeal by can-
    didate or any other person on behalf of the candidate to vote or refrain
    from voting on the score of caste, religion, race, community of the use of
H   or appeal to religious symbols or the use of or appeal to national symbols
               D.R. DESHMUKH v. N.K.N. KADAM (G.N. RAY, J.)                      167

    such as the national flag or the national emblem for the furtherance of the         A
    prospects of that candidate's election. In the objects and reasons for the

-   amendment to Section 123, it was indicated that such amendment was
    necessary for curbing communal and separatist tendencies in the country.
    It was proposed to widen the scope of corrupt practice mentioned in
    Clause 3 of Section 123 of the Representation of People Act. Mr. Kotwal             B
    has submitted that in various decisions dealing with the scope and ambit
    of corrupt practice under the Representation Act, this Court has observed
    that the paramount and basic purpose underlying Section 123(3) of the Act
    is the concept of secular democracy. Section 123(3) was enacted to
    eliminate from the electoral process appeals to divisive factors such as
    religion, caste etc. which give vent to irrational passions. It is essential that   C
    powerful emotions generated by religion should not be permitted to be
    exhibited during elections and the decision and choice of the people are
    not coloured in any way. In this connection, Mr. Kotwal has referred to the
    decision of this Court in S. Harcharan Singh v. S. Sajjan Singh and Others,
    AlR (1985) SC 236. Mr. Kotwal has submitted that in order to determine              D
    whether certain activities come within the mischief of. Section 123(3),
    regard must be had to the substance of the matter rather than to the mere
    form or phraseology. The inhibition of the section should not be permitted
    to be circumvented indirectly or by circuitous or subtle devices. The Court
    should attach importance to the paramount purpose of Section 123(3)
    namely to prevent religious influence from entering the electoral field. The        E
    nature and consequence of an act may not appear on its very face but the
    same can be implied having regard to the language, the context, the status
    and position of the person issuing the statements, the appearance and
    known religion of the candidate, the class of persons to whom the state·
    ment or act is directed. It has been submitted that it is the total effect of       F
    such an appeal that has to be borne in mind in deciding whether there was
    an appeal to religion as such or not. Mr. Kotwal has submitted that in the
    guise of criticising political policies, one should not directly or indirectly
    or by circuitous or subtle devices permit religious influence to enter the
    electoral field.
                                                                                        G
           Mr. Kotwal has submitted that to prevent corrupt practice it is
    necessary to name all persons who have indulged in corrupt practice in an
    election campaign. A duty has been cast on the Court to name not only
    those who are parties to the proceeding indulging in corrupt practice but
    also those who are not parties but have connived and indulged in corrupt            H
    168                   SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A   practice either with the consent by a candidate or his election agent or have
    indulged in corrupt practice on their own without such consent. According
    to Mr. Kotwal an order under Section 99 of the Representation Act need
    not be passed simultaneously with the order under Section 98 and naming
    of collaborators to corrupt practice who were not parties in the election
    case, may be made subsequently by a supplementary or complimentary
B   order. Mr. Kotwal has submitted that Section 123 should be construed
    pragmatically by keeping in mind that the mischief for which said Section
    has been incorporated in the Representation Act, is not suppressed. Ac-
    cording to Mr. Kotwal, the proceeding against the returned candidate and
    all those who are parties to the petition should be treated as separate and
C   distinct from the proceeding against collaborators. He has submitted that
    for the purpose of naming the collaborators, the returned candidate is not
    entitled to a hearing in the notice proceedings. He has also submitted that
    for the purpose of finding against the parties, the proceeding should not
    be kept pending only for the purpose of naming the collaborators, who
D   were not on record, after following the appropriate procedure. In this
    connection, Mr. Kotwal has referred to the decisions of this court in R.M.
    Seshadri v. G. V. Pai and Others, AIR (1969) SC 692, D.P. Mishra v. Kamal
    Narayan Sha1ma and Another, AIR (1970) SC 1477 D.P. Mishra v. Kamal-
    narayan Shanna and Others, AIR (1971) SC 856, Rahim Khan v. Khurshid
    Ahmed and Others, AIR (1975) SC 290. Mr. Kotwal has submitted that for
E   the purpose of naming the collaborators, the High Court may be directed
    to follow appropriate procedure for giving notice to the collaborators so
    as to afford an opportunity to them to place their case but the decision
    made against the appellant should not be kept pending. He has contended
    that in the facts and circumstances of the case, the corrupt practice
F   pursued by the appellant having been fully established by cogent and
    convincing evidence, the appeal preferred by Dr. Deshmukh should be
    dismissed.

           After giving our anxious consideration to the facts and circumstances
    of the case and contentions made by the respective counsel for the parties,
G   it appears to us that in the instant case, it has been convincingly established
    that the appellant has permitted to display poster Ext. 0.20 for the purpose
    of his election campaign. In the said poster, appeal to vote for the appellant
    was made. for the purpose of teaching a lesson to muslims. Such appeal, to
    say the least, was potentially offensive and was likely to rouse passion in
H   the minds of the voters on communal basis. Such appeal to teach a lesson
              D.R.DESHMUKH v. N.KN.KADAM[G.N.RAY,J.]                         169

    was also likely to bring disharmony between the two communities namely          A
    the hindus and the muslims and offended the secular structure of the
    country. In our view, use of such poster by itself is sufficient to hold that
    the appellant had indulged in corrupt practice under Section 123(3) and
    123 (3A) of the Representation Act. We may, however, indicate that
    speeches delivered in the election meeting by leaders of political parties      B
    should be appreciated dispassionately by keeping in mind the context in
    which such speeches were made. This Court has indicated a note of caution
    that in election speeches appeals are made by candidates of opposing
    political parties often in an atmosphere surcharged with partisan feelings
    and emotions. Use of hyperboles or exaggerated language or adoption of          C
    metaphors and extravagence of expression in attacking one party of a
    candidate are very common and court should consider the real thrust of
    the speech without labouring to disect one or two sentences of the speech,
    to decide whether the speech was really intended to generate improper
    passions on the score of religion, caste, community etc. In deciding whether
    a party or his collaborators had indulged in corrupt practice regard must       D
    be had to the substance of the matter rather than mere form or phraseol-
    ogy. In Ku/tar Singh's case (supra), this Court has recognised that there are
    several parties whose membership is either confined to or predominantly
    held by members of some communities or religion and that an appeal made
    by candidates of such parties for votes may in an indirect way concavely        E
    be influenced by considerations of religion, race, community or language.
    So long as the law recognises such parties for the purpose of election and
    parliamentary life, this situation cannot be avoided. Such view has also been
    reiterated in later decisions of this Court. It has been very strenuously
    contended by the learned counsel for the appellant that appeal to vote for
                                                                                    F
    'hindutwa' should not be confused with appeal to vote only for a member
    of  one community namely the hindus. Criticism of partisan treatment

-   meted out to the hindus by the ruling congress party or appeasement policy
    in favour of one community or followers of a particular religion impairing
    national integrity and appeal to oppose such improper and anti national
    policy should not be held to be an appeal to vote only on the basis of a        G
    particular religion. It has been contended that the thrust of the speeches
    was that ·inequal treatment meted out to hindus and deliberate hurting of
    sentiments of hindus have encouraged divisive forces and anti-national
    elements in the country and hindus should be aware of such divisive forces
    and try to unite against such divisive and anti national forces in selecting    H
    170                   SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A proper candidate who would safeguard the unity and integrity of the
    country. In oµr view, it is not necessary to consider the philosophy of hindu
    religion and its tenets of tolerance and respect for different religious faiths
    for the purpose of appreciating whether appeals was really made for
    hindutwa which is something different from outward practices and some
    of the followings professed by followers of hindu religion. In the instant
B   case, we have already indicated that the appellant had given publicity to
    the voters by exhibiting the poster Ext. 0.20 which was per se highly
    offensive and potentially vulnerable and was likely to bring natred and
    misunderstanding between the two communities, namely, the hindus and
    the muslims. In our view, the poster containing an appeal to vote for the
c   appellant 'to teach the muslim a lesson' cannot be justified in any manner
    even by giving reasonable latitudes in election speeches.

           As the appeal can be disposed of by holding that the appellant was
    guilty of corrupt practice for which his election was liable to be set aside
    the displaying the said poser Ext. 0-20, we refrain form considering the real
D   impact: of the speeches delivered in the meetings of February 4, 1990 and
    February 9, 1990 by making an indepth analysis of the same in the light of
    the guidelines indicated hereinbefore.

          In the special facts of the case, it also appears to us that it may not
E   be necessary to consider the disputes contentions as to whether the general
    publicity of Shiv Sena and BJP for the general election in Maharashtra and
    of Nanded Assembly Constituency amounts to publicity by or with the
    consent of the appellant and whether such publicity can be construed as
    constituting corrupt practice under Section 123(3) and 123(3A) of the
    Representation Act. It may, however, be indicated here that the High
F   Court has answered issue No. 4 namely "whether the petitioner proves that
    Respondent No. 1 utilised the propaganda machinery of Shiv Sena party"
    in the negative.

           In that view of the matter, it is also not necessary to remand the·
G matter to the High Court for naming the collaborators of corrupt practice
    by following the appropriate procedure for the purpose. This appeal
    therefore fails and is dismissed with costs.

    T.W.                                                       Appeal dismissed.