Case Note & Summary
This appeal under Section 116A of the Representation of the People Act, 1951 arose from a judgment of the Bombay High Court dated 16 April 1992 in Election Petition No. 4 of 1991, by which the election of the appellant, Moreshwar Save, from 33-Aurangabad Parliamentary Constituency to the Lok Sabha held on 12 June 1991 was set aside on the ground under Section 100(1)(b) for commission of corrupt practices under Sections 123(3) and 123(3A) of the Act. The election petitioner, Dwarkadas Yashwantrao Pathrikar, had alleged that the appellant's election was void because of appeals to religion and promotion of enmity between different groups, based on speeches delivered by Manohar Joshi, Bal Thackeray, and Chhagan Bhujbal. The election petition contained general averments that the appellant had appealed on the basis of religion to Hindus, claiming Hindu religion was in danger. Specific speeches were attributed to Manohar Joshi on 6 May 1991 and Bal Thackeray on 12 May 1991, including statements about Hindutva being the breath and third eye of Lord Shankra and slogans of Har Har Mahadev. The petition also pleaded a speech by Chhagan Bhujbal, which was described as the harshest, urging voters to elect a BJP-Shiv Sena government to keep Hindus alive and to erect a Ram temple, but no evidence was led on this speech and it was abandoned at trial. The Supreme Court, on appeal by the returned candidate, identified a fundamental defect: the corrupt practice found proved against the appellant was based solely on two speeches by other persons, Manohar Joshi and Bal Thackeray, and not on any speech by the appellant himself. The liability was thus vicarious, but no notice under Section 99 of the Representation of the People Act, 1951 was given to either speaker. The Court referred to its decision in the connected Civil Appeal No. 4973 of 1993, Manohar Joshi v. Nitin Bhaurao Patil, decided the same day, and held that a combined reading of Sections 98 and 99 required that in a situation of vicarious liability, a simultaneous verdict against the person named in the notice under Section 99 and the candidate had to be given at one time while deciding the election petition. The High Court had no option to ignore the allegation against the person for whose act the candidate was held liable, nor could it decide the case piecemeal. This defect alone was sufficient to vitiate the impugned judgment. The Court further observed that there was no clear pleading or finding of the appellant's consent, which was a constituent part of a corrupt practice resulting from an act of any person other than the candidate or his agent. Since the case was based only on Section 100(1)(b) and not Section 100(1)(d)(ii), and neither Manohar Joshi nor Bal Thackeray were the election agents of the appellant, the requirement of consent could not be dispensed with. Thus, one constituent element of the alleged corrupt practice was absent, and any further inquiry would be futile. Additionally, the Court held that the alleged speeches did not contain the element of promotion of or attempt to promote feelings of enmity or hatred as required under Section 123(3A), and the general statements were too vague to constitute an appeal for votes on the ground of religion under Section 123(3). The Court noted the significance of the election petitioner's abandonment of the Chhagan Bhujbal speech, which was comparatively harsher and did not amount to a corrupt practice, thereby undermining the credibility of the case based on the milder speeches. The Supreme Court concluded that the election petition did not merit any further consideration or trial and that the High Court had accepted a vaguely and casually pleaded corrupt practice in clear contravention of Section 99. Accordingly, the appeal was allowed, the judgment of the High Court was set aside, the election petition was dismissed, and the appellant was awarded costs throughout from the respondent.
Headnote
A) Election Law - Corrupt Practices - Notice to Person Alleged to Have Committed Corrupt Practice - Representation of the People Act, 1951, Sections 98, 99, 100(1)(b) - The High Court set aside the appellant's election based on speeches by Manohar Joshi and Bal Thackeray without issuing notice to them under Section 99. The Supreme Court relied on its decision in connected Civil Appeal No. 4973 of 1993 to hold that a combined reading of Sections 98 and 99 requires a simultaneous verdict against the candidate and the noticed person when liability is vicarious. Held that the defect of want of notice alone was sufficient to vitiate the High Court judgment. (Paras Not mentioned) B) Election Law - Corrupt Practices - Consent as Constituent Element - Representation of the People Act, 1951, Section 100(1)(b) - The case was based only on ground under Section 100(1)(b), not Section 100(1)(d)(ii), and neither speaker was the appellant's election agent. The court observed there was no clear pleading or finding of the appellant's consent, which was a constituent part of corrupt practice resulting from the act of a person other than the candidate or his agent. Held that this absence indicated a missing constituent element and any further inquiry was futile. (Paras Not mentioned) C) Election Law - Corrupt Practices - Sufficiency of Pleadings - Representation of the People Act, 1951, Sections 123(3) and 123(3A) - The alleged speeches of Manohar Joshi and Bal Thackeray contained only vague general statements and did not include the element of promotion of or attempt to promote feelings of enmity or hatred under Section 123(3A), nor did they constitute an appeal for votes on the ground of religion under Section 123(3). The court noted that the election petitioner had abandoned the allegedly harshest speech by Chhagan Bhujbal and no evidence was led on it, undermining credibility. Held that the vague pleadings did not merit further consideration or trial. (Paras Not mentioned)
Issue of Consideration
Whether election of returned candidate could be set aside for corrupt practices under Sections 123(3) and 123(3A) of the Representation of the People Act, 1951 based on speeches of third parties without issuing notice to them under Section 99; whether absence of clear pleading of candidate's consent and vague allegations vitiated the High Court's finding
Final Decision
Appeal allowed; the judgment of the Bombay High Court dated 16.4.1992 in Election Petition No. 4 of 1991 was set aside; the election petition was dismissed; the appellant was awarded costs throughout from the respondent.
Law Points
- Corrupt practice under Representation of the People Act
- 1951 based on acts of third parties requires notice to those persons under Section 99
- Sections 98 and 99 require simultaneous adjudication of candidate and named person
- Consent of candidate is constituent element for corrupt practice by non-agent under Section 100(1)(b)
- Vague and general pleadings are insufficient to attract Sections 123(3) and 123(3A)
- No further inquiry warranted when essential elements absent
