Case Note & Summary
The Supreme Court considered an election appeal under Section 116B of the Representation of the People Act, 1951 arising from a judgment of the Bombay High Court in Election Petition No. 11 of 1991. The dispute concerned the 1990 election to the No. 40 Santacruz Legislative Assembly Constituency in Maharashtra. The appellant, who contested as a BJP candidate and was Vice President of the Bombay Unit of that party, was declared elected on March 1, 1990 after polling on February 27, 1990. The respondent, since deceased and represented by legal representatives, contested as a Congress Party candidate and secured the second largest votes. The respondent filed an election petition alleging corrupt practices under Sections 123(3) and 123(3A) of the Act. The High Court, after considering voluminous oral and documentary evidence, allowed the election petition by judgment dated December 19, 1991, holding that the election campaign appealed for votes on the basis of religion and community, specifically using the plank of Hindutva/Hinduism/Hindu, and attempted to create enmity and hatred between Hindus and Muslims. The High Court also referred to tape recordings of speeches made by political leaders at meetings on February 10, 17, 20-21, 23 and 24, 1990, and issued notices under Section 99 to those leaders in a connected election petition. Before the Supreme Court, the appellant contended that the High Court's findings were vitiated because the mandatory requirements of notice and opportunity under Section 99(1) proviso were not complied with, relying on decisions in Suryakant Venkatrao Mahadik, Ramakant Mayekar, Prof. Ramchandra G. Kapse, Moreshwar Save and Manohar Joshi No.2. He argued that speeches by leaders were made without his consent, hence corrupt practices were not proved. He sought remittal of the matter for compliance with Section 99 as interpreted in Manohar Joshi No.2. The respondent's counsel controverted these submissions. The Supreme Court identified three interwoven questions for decision: (i) whether the trial judge must record prima facie conclusions on proof of corrupt practices by the returned candidate, agents or collaborators; (ii) whether consent of the returned candidate is required and how it is to be proved; (iii) what content the Section 99(1) proviso notice should contain, particularly whether it must be like a mini judgment extracting pleadings, evidence and findings. The Court noted a clear conflict between the three-judge Bench decision in Manohar Joshi No.2, which required a mini judgment with detailed material, and the later decision in Dr. Ramesh Yeshwant Prabhoo, which equated the noticee with a party and required only the same opportunity as a party. The Court also observed inconsistency on the issue of proof of consent, as Dr. Prabhoo's case inferred consent from certain paragraphs while other cases held consent must be affirmatively proved. Consequently, the Supreme Court, after spending considerable time on diverse questions, held that the conflicting views needed authoritative resolution and referred the appeal to a Constitution Bench of five judges. No final decision on the merits of the election appeal was given; the matter was remitted for resolution of the legal questions identified.
Headnote
A) Election Law - Corrupt Practices - Appeal for votes on grounds of religion and community - Representation of the People Act, 1951, Sections 123(3), 123(3A) - High Court held that voluminous evidence showed campaign appealed on basis of Hindu religion and attempted to create enmity between Hindus and Muslims; speeches by party leaders were subject to Section 99 notices; Supreme Court noted conflicting approaches on consent and notice and referred matter to Constitution Bench (Paras 186-198). B) Election Law - Notice to Non-Parties - Section 99(1) proviso - Duty of court to give notice and opportunity before naming persons guilty of corrupt practices - Representation of the People Act, 1951, Section 99(1) proviso - Manohar Joshi No.2 required mini judgment with pleadings, evidence, and findings, while Dr. Prabhoo equated noticee with party and required only same opportunity; Supreme Court held these views mutually conflicting and referred for authoritative decision by five-judge Bench. C) Election Law - Proof of Consent - Consent of returned candidate for acts of agents or collaborators - Representation of the People Act, 1951, Sections 123(3), 123(3A), 99 - Dr. Prabhoo inferred consent from counsel speeches in paragraphs 53 and 57, while other cases held consent required proof; Supreme Court observed inconsistency and referred for authoritative ruling.
Issue of Consideration
Whether the High Court is required to record prima facie conclusions on proof of corrupt practices; whether consent of the returned candidate is required and how proved; what content the Section 99(1) proviso notice must contain; which conflicting Supreme Court view on Section 99 compliance is correct.
Final Decision
The Supreme Court referred the appeal to a Constitution Bench of five judges to decide the questions arising in the appeal, noting that decisions in Manohar Joshi No.2 and Dr. Prabhoo's case are mutually conflicting and require authoritative resolution.
Law Points
- Section 99(1) proviso of Representation of the People Act
- 1951 requires notice and opportunity to non-parties before naming them for corrupt practices
- content of notice and proof of consent under Sections 123(3) and 123(3A) need authoritative interpretation
- decisions in Manohar Joshi and Dr. Prabhoo are mutually conflicting.
