Communal appeals in election speech and promotion of hatred can amount to corrupt practice under the election law

Section 123(3) of the Representation of the People Act was construed to bar appeals to vote, or refrain from voting, on grounds of religion, race, caste, community or language, and was upheld as a reasonable restriction in a secular polity. Section 123(3A) was construed to prohibit promotion of enmity or hatred between classes of citizens on the specified grounds and was also upheld as valid; the speeches were found, on their substance and effect, to amount to corrupt practice, including communal appeals for votes and, in one instance, promotion of enmity. Section 99 was held satisfied where the non-party was given pleadings, evidence, cross-examination rights, defence evidence, and a hearing without shown prejudice.

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Issues: (i) Whether Section 123(3) of the Representation of the People Act, 1951 is constitutionally valid and how its scope is to be construed; (ii) whether Section 123(3A) of the Representation of the People Act, 1951 is constitutionally valid and whether the speeches in question amounted to corrupt practices under Sections 123(3) and 123(3A); (iii) whether the notice and procedure under Section 99 of the Representation of the People Act, 1951 were complied with before naming a non-party as guilty of corrupt practice.

Issue (i): Whether Section 123(3) of the Representation of the People Act, 1951 is constitutionally valid and how its scope is to be construed.

Analysis: The provision was held to prohibit an appeal to vote or refrain from voting for a candidate on the ground of that candidate's religion, race, caste, community or language. The expression "his" was treated as significant and restrictive, but not as confining the provision to only a mechanically direct form of words. The speech has to be read as a whole, in its context, and according to its effect on the ordinary voter. The restriction was upheld as a reasonable restriction under Article 19(2) of the Constitution of India on the ground of decency in a secular polity, and it was held unnecessary to read public order into the provision.

Conclusion: Section 123(3) was held constitutionally valid and enforceable against appeals based on the candidate's religion.

Issue (ii): Whether Section 123(3A) of the Representation of the People Act, 1951 is constitutionally valid and whether the speeches in question amounted to corrupt practices under Sections 123(3) and 123(3A).

Analysis: Section 123(3A) was held to target promotion or attempted promotion of enmity or hatred between classes of citizens on the specified grounds, and this was treated as a restriction plainly connected with public order and incitement to offence. The Court held that mere reference to "Hindutva" or "Hinduism" does not by itself attract the prohibition; what matters is the actual purport of the speech. On the facts, the speeches were found to be appeals for votes for the returned candidate on the ground that he was Hindu, and the first speech also contained derogatory communal references amounting to promotion of enmity or hatred.

Conclusion: Section 123(3A) was held valid, and the speeches were held to constitute corrupt practice under Section 123(3) in all three instances and under Section 123(3A) in respect of the first speech.

Issue (iii): Whether the notice and procedure under Section 99 of the Representation of the People Act, 1951 were complied with before naming a non-party as guilty of corrupt practice.

Analysis: The noticee was given the pleadings, evidence, an opportunity to cross-examine witnesses, to adduce defence evidence, and to be heard. The Court held that Section 99 requires that a non-party be given the same practical opportunity to defend as a party to the election petition, and that standard was satisfied. No prejudice was shown.

Conclusion: Compliance with Section 99 was upheld.

Final Conclusion: The election was upheld as void, the appellants were found guilty of the proved corrupt practices, and the challenge to the notice procedure failed.

Ratio Decidendi: In an election speech, a communal appeal or a vote-seeking appeal based on the candidate's religion, or a speech promoting communal hatred, is a corrupt practice when judged by its substance and effect on the ordinary voter, and such a restriction is constitutionally valid as a reasonable constraint in a secular democracy.

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