H. Suresh, J.
1. The petitioner was a candidate of Janata Dal in the election held for the Maharashtra Legislative Assembly on 27th February 1990 from Constituency No. 33-Matunga Constituency. The respondent was a candidate of Bharatiya Janata Party (hereinafter referred to as 'B.J.P'). She secured 31,530 votes while the petitioner secured 28,021 votes. He came third, inasmuch as, there was a Congress candidate who secured 28,426 votes. This petition is to challenge the election of the respondent on the ground of corrupt practices under sections 123(3) and 123(3A) of the Representation of the People Act, 1951 (hereinafter referred to as 'Act of 1951').
2. The relevant portion of the petitioner's case, in so far as, he sought to establish before me is this :
That there was an alliance between B.J.P and Shiv Sena during the last election for the Assembly seats and that they appealed to the voters on the basis of Hindu religion. The relevant facts are that there was a meeting of the said alliance on 29th January 1990 at Girgaon Chowpatty when the said alliance introduced all the candidates who were to contest from various Constituencies in the city of Bombay. In the said meeting, leaders of both the parties appealed to the voters to vote on the basis of Hindu religion or community. Similarly, on the eye of the election on 24th February 1990 there was a public meeting at Shivaji Park when again all the candidates were present. That meeting was also addressed by the leaders of both the parties. Against the appeal was on the basis of Hindutva. In between there were two meetings - one on 8th February 1990 and the other on 15th February, 1990, both within the Constituency of Matunga addressed by the respondent and certain other leaders of both the parties, again, inter alia, on the same plank. Hence the charge as mentioned above.
3. In the written-statement, the meetings are not denied. But the contention is that there was no alliance but only an understanding between the two parties to avoid multi-corner contests and to defeat Congress (i). The further contention is that the respondent contested on her own party's programmes and manifesto. I will deal with the relevant pleadings when I discuss the evidence hereunder.
4. The following issues were framed :
1. Whether the respondent has committed any of the corrupt practices as defined in section 123(3) of the Representation of People Act, 1951; as alleged in the petition ?
2. Whether the Election Agent or any other agent of the respondent has committed any of the corrupt practices as defined in section 123(3) of the Representation of People Act, 1951 as alleged in the petition ?
3. Whether any other person with the consent of the respondent and/or his Election Agent has committed any of corrupt practice as defined in section 123(3) of the Representation of People Act, 1951 as alleged in the petition ?
4. Whether the respondent has committed any of the corrupt practices as defined in section 123(3A) of the Representation of People Act, 1951 as alleged in the petition ?
5. Whether the Election Agent or any other agent of the respondent has committed any of the corrupt practices as defined in section 123(3a) of the Representation of People Act, 1951 as alleged in the petition ?
6. Whether any other person with the consent of the respondent and/or his Election Agent has committed any of the corrupt practices as defined in section 123(3a) of the Representation of People Act, 1951 as alleged in the petition ?
7. Whether the respondent has committed any of the corrupt practices as defined in section 123(2) of the Representation of People Act, 1951 as alleged in the petition ?
8. Whether the Election Agent or any other agent of the respondent has committed any of the corrupt practices as defined in section 123(2) of the Representation of People Act, 1951 as alleged in the petition?
9. Whether any other person with the consent of the respondent and/or his Election Agent has committed any of the corrupt practices as defined in section 123(2) of the Representation Act, 1951 as alleged in the petition ?
10. And Generally.
5. Mr. Sathe appearing for the respondent wanted to raise certain preliminary issues such as whether the petition was liable to be dismissed for non-compliance with the provisions of section 81 of the Act of 1951. Similarly, he also wanted to contend whether the petition was liable to be dismissed on the ground in incomplete cause of action and non-disclose and for non-compliance with the provisions of section 83 of the Act of 1951. So also he has contended that the petition is liable to be dismissed under Order VI, Rule 16, Code of Civil Procedure, inasmuch as the pleadings therein contain several irrelevant and abusive materials.
6. I have not allowed these issues to be raised, inasmuch as, all these contentions were considered by me earlier when the respondent took out a Chamber Summons bearing No. 850 of 1990, which I disposed of by my Judgment and Order dated 13th October, 1990. I had given detailed reasons in support of my judgment dealing with all the contentions that could be advanced on those preliminary issues and I negatived the same. Against my Judgment and Order, the respondent filed a Special Leave Petition in the Supreme Court and the Supreme Court by its Order dated 18th December 1990 rejected the said Special Leave Petition. In my view, the said Chamber Summons was decided not on any prima facie considerations but on merits and the same having been decided, it is now not open to the respondent to raise the contentions once again. It, was for this reason, I did not permit Mr. Sathe to raise these issues once again.
7. The petitioner examined himself and 14 other witnesses. The respondent examined herself only and she has been cross-examined.
8. Apart from the meetings referred to above, the petitioner has relied on two facts one was pertaining to an incident which took place on 27th February 1990 at the time of election in the polling stations situated in the area of Sanatana Dharma Secondary School. His case is that on that day at about 3.00 P.M. or little earlier, the respondent had come to the said polling station with one Diwan Oberoi who had earlier contested as a B.J.P candidate for the Municipal Elections as against the petitioner himself. The case of the petitioner is that after about fifteen minutes the respondent left the place. Thereafter there was an incident and Diwan Oberoi fired some shot from his revolver which scared the voters in these polling stations. The voters ran away and according to him they were all his supporters. Thereafter Diwan Oberoi and certain others were arrested by the police and they have been charged for rioting. The other fact relates to certain posters having been pasted just a day prior to the date of polling. The posters contained an unfair appeal to the voters indicating that the petitioner had given shelter to terrorists who had assassinated Indira Gandhi and that he was supporting Khalistan. According to the petitioner, this was done by the respondent's workers and since he came to know of it, he had complained about it to the police, but the police did not take any action.
ISSUES Nos. 7, 8 AND 9
9. These issues relate to the said incident where Diwan Oberoi is alleged to have fired some shots to scare away the voters. The evidence which has come on record is not at all satisfactory to hold that the voters were really threatened by Diwan Oberoi. One Darshansingh s/o Tarasingh banga (P.W. 10), whose 'First Information Report (Exhibit 'C') was recorded, has been examined by the petitioner. He says he had gone to the Polling Station situated at Sanatan Dharma Secondary School at about 3.00 P.M., At that time, one person came out from the polling station and informed him that he was refused to cast his vote. While he was talking to him, stones were thrown towards the school. He was about to run away. He heard the sound of a shot fired by a gun. He then went towards the police who were there at a distance. He brought police to the polling station. The police then caught hold of three of four persons and made them sit in the police van and later on they were all arrested. Diwan Oberoi was also brought to the police station. He was sent to the hospital for treatment. It is on record that the police have registered a counter case as against other persons. The case and the counter case are both pending in the Court awaiting trial. In his cross-examination, he (P.W. 10) admitted that he had not seen anybody else being stopped from voting. He does not know how many voters were there in the queue. According to him, there was a queue of voters which had extended outside the room of the polling station. The petitioner has also examined other witnesses, namely, Ghai Tejenderpal Singh (P.W. 6), Awtarsingh s/o Santsingh Talwar (P.W. 7), Santaram s/o Herachand Modh (P.W. 8) and Sachdev s/o Karamsingh Charansingh (P.W. 9) in support of this incident. It is not very clear from the evidence of these witnesses whether the voters were really threatened or whether after the police arrested and took away Diwan Oberoi and others, the voters were not in a position to come back and vote. But the more important is the fact that there is nothing to show that Diwan Oberoi had created this incident with the consent of the respondent. He was not her Election Agent or any agent as such. The mere fact that the respondent had come there with Diwan Oberoi and went away after about 15 minutes leaving Diwan Oberoi at that place by itself would not sufficient to hold that the incident was created at the instance of the respondent. The respondent, in her evidence, has stated that when she went to the school, Diwan Oberoi was not with her and she had gone to the school at about 12.00 noon and she was there till about 1.00 p.m. In the result, all these issues will have to be answered in the negative as against the petitioner.
ISSUES Nos. 1 to 6
10. Before I deal with the evidence relating to meetings, I can straightway dispense with the allegation pertaining to the affixation of the posters referred to above. In support of the petitioner's contention that such posters had been affixed, the petitioner has produced certain photographs Exhibit 'A' (Collectively). The photograph have been taken at the corner of Laxmi Narayan Lane. The photographs do show that the posters had been affixed containing the imputed material at that place. The petitioner himself does not known who had affixed such posters. According to him, such posters had been affixed all over the constituency. However, there is no satisfactory evidence in that behalf. The photographs were taken on or bout 9th March 1990 i.e., to say after about eight days of the declaration of the result. If, in fact, such posters had been affixed all over the constituency, the petitioner should have taken some more photographs to indicate that such posters were found at all these places. Again, there is no satisfactory evidence as to who pasted such posters. The petitioner has led the evidence of one Giridhar Visanji Somaya (P.W. 4) and he says that he had seen such poster in the constituency. He further says that in the earlier morning of 26th February 1990 he and Mr. Ramchandran, the Election Agent of the petitioner, had been these posters being pasted at the junction of Rambaug Land and Laxminarayan Lane. There was a taxi and some people were pasting these posters at that time. The taxi had a flag of Shiv Sena and B.J.P. As soon as the witness and the said Ramchandran entered that lane in their car, those persons entered that taxi and ran away. He could not even not down the number of the tax. The other evidence is of Ramchandran (P.W. 5), the Election Agent of the petitioner. He also more or less says the same way as Somaya (P.W. 4) has said. He himself does not know who had actually pasted the posters. According to him, the taxi had a B.J.P. Shiv Sena flag and, therefore, the inference is that the workers of B.J.P. Shiv Sena had pasted such posters.
11. The evidence is not sufficient to hold that such posters were affixed at the instance of the respondent. The respondents in her evidence has denied any knowledge of these posters and has stated that she has no connection with these posters. I am, therefore, not inclined to accept the evidence of the petitioner in this behalf.
12. As regards the other material pertaining to slogans used by the respondent, again there is no satisfactory evidence in his examination-in-chief. The petitioner has stated that there were certain wall paintings containing the words : 'TO SAVE HINDUTVA, VOTE FOR B.J.P. - SHIV SENA.' The petitioner does not remember other slogans. This slogans has not been mentioned in the petition as such. The other witness do not depose in respect of these wall paintings. On the other hand, Mr. Ramchandran (P.W. 5) speaks of another slogan found on the wall, namely, 'GARVA SE KAHO HUM HINDU HAI'. This again, is not found in the petition as such. Therefore, I am again not prepared to accept the evidence of any such wall paintings or slogans having been used for the purpose of canvassing by the respondent.
13. In the result, the only evidence as far as the appeal is concerned is the evidence relating to two meetings within the Constituency and the two meetings outside the Constituency. Since there is no denial of the four meetings, it is proper that the exact pleadings are considered at this stage. In the petition, after setting out briefly as to how B.J.P. and Shiv Sena formed an alliance, the petitioner has stated in para 9 of the petition that a joint public meeting was held at Girgaum Chowpatty on 29th January 1990 at 6.oo p.m. for the purpose of launching the election campaign of the candidates of the said alliance in the City of Bombay. The said meeting was addressed by the leaders of the said alliance, namely, Bal Thackeray and Changan Bhujbal (both Shiv Sena). Pramod Mahajan, Prem Kumar Sharma, Kirit Somaiya (all B.J.P.), and others. At the said meeting, all the 34 candidates contesting the election from the City of Bombay including the respondent herein were present. In para 10 of the petition, the petitioner has stated that the proceedings of the said meeting were reported in various newspapers, including Times of India dated 30th January 1990 and Samna, Lok Satta, Navakal, Navshakti, Maharashtra Times, Mumbai Sakal, Bombay Samachar and Janmabhoomi. In para 11, the petitioner has referred to the fact that the police authorities have tape-recorded the speeches made by these leaders and they have also taken down the said speeches in shorthand and the petitioner would refer to and rely upon the same as and when produced. In para 12 of the petition, the petitioner has set out the most offending parts of the speeches made by Bal Thackeray and other leaders.
14. In the written-statement, there is an admission that such a meeting was held at Girgaum Chowpatty for launching the election campaign of the candidates. There is also an admission that the said meeting was addressed by the leaders of the said parties. As regards the reporting of the speeches in all the newspapers referred to in para 10 of the petition, the respondent denies knowledge about the reporting and contents thereof. But that is significant is that she has denied her presence in the said meeting. She also says that she has no knowledge about the reporting of those speeches. As regards the offending parts of the speeches made by Bal Thackeray and other leaders, the respondent only says this :
'.......that the isolated sentence referred to by the petitioner will not rightly reflect the theme of the speakers. Rather a view in its totality has to be considered. However, the respondent denies that votes were asked in the name of religion.'
15. As regards the meeting held on 24th February 1990, in para 19 of the petition, the petitioner has stated that a joint public meeting was held at Shivaji Park, Dadar, on 24th February 1990. At the said meeting, most of the candidates of the B.J.P Shiv Sena alliance, including the respondent herein were present. That meeting was addressed by the leaders of the said alliance. The petitioner has stated that at the said meeting, Bal Thackeray reiterated that the said alliance was contesting the election in the name of Hindutva and to fight for Hindutva. The proceedings of the meeting were widely reported again in the same dailies, as referred to above, on 25th February and 26th February 1990. In para 20 of the petition, the petitioner has set out the offending statements made by the leaders. In para 21, the petitioner has stated that the proceeding of the said meeting were tape-recorded and taken down in shorthand by the police authorities.
16. As regards these allegations contained in paras 19 and 20 of the petition, the respondents deals with the same in para 16 of the written-statement. She admits the meeting. She does not deny her presence. She says that it is not true that in the said meeting votes were asked for in the name of religion. As regards the various utterances, the respondent has stated that the whole theme of the speech in its totality has to be looked into to draw the correct inference. She does not deny that the proceedings of the said meeting were widely reported in the dailies, as referred to in para 19 of the petition. As regards the speeches having been tape-recorded by the police authorities she says that has no knowledge about the same.
17. Reference to the public meeting held within the Constituency on 8th February, 1990 is found in paras 16 and 17 of the petition. The petitioner has stated such a meeting was held at 11.00 P.M., next to Sangam Nagar Police Station (Antop Hill, Matunga). The said meeting was addressed by Kundan Agaskar, District President of Shiv Sena, Chandrakant Vishwasrao (Shakha Pramukh of Shiv Sena No. 45). Shivaji Gavade (Up-Shakha Pramukh), Pramod Thakur (Municipal Councillor, Shiv Sena No. 45). Shivaji Vidyadhar Gokhale and Jaywantiben Mehta (MPs-B.J.P., and the respondent herself. In that meeting, the respondent made an appeal to vote for herself in the name of religion. She also referred to the mosque in Ayodhya and she stated that the said mosque was constructed by the people of the other countries and not by the people of other countries was to the people of Pakistan. She further stated that those who are pro-Hindus are nationalists and that is why the alliance of Shiv Sena should be elected. These speeches have been recorded by the Antop hill Police Station in the Election Diary and that he (the petitioner) relies on a certified copy of the said Election Diary.
18. In the written-statement, these allegations are dealt with in paras 13 and 14. There is no denial of the fact that there was such a meeting and that the leaders referred to in para 16 of the petition and the respondent herself addressed the said meeting. She only denied that she had created or tried to create any enimity amongst voters, particularly between Hindus and Muslims as alleged by the petitioners. There are the statements that we find in the written-statement.
19. So also with regard to the meeting held on 15th February 1990 at Punjab Camp GTB Nagar, Sion, the petitioner has dealt with the same in para 18 of the petition. He has stated that the said meeting was addressed by Gajanan More (Shiv Sena), Diwanchand Oberoi (B.J.P.), Shatrughna Sinha (Actor), Kirit Somaiya (General Secretary, Bombay City, B.J.P.) and the respondent herself. The meeting was held at about 8.20 p.m. The petitioner has stated that both Gajanan More and Kirit Somaiya referred to Hindutva and to fight for Hindutva, the candidates of the alliance should be elected. Again these speeches have been recorded by the police authorities in the Election Diary and the petitioner has obtained a certified copy of the same.
20. Para 15 of the written-statement is in answer to this allegation. The respondent admits that such a meeting was held. She does not deny that the meeting was addressed by the persons mentioned in the petition. A vague statement has been made that she denies the various allegations made by the petitioner.
21. Now, as regards the meeting held at Girgaum Chowpatty and Shivaji Park on 29th January 1990 and 24th February 1990 respectively, all the speeches have been tape-recorded by the police. In Election Petition No. 10 of 1990, evidence was led to prove all those audio cassettes and shorthand notes and after the same were duly proved, they were exhibited in those proceedings. In view of the said fact, Mr. Sathe very fairly submitted that without prejudice to the rights and contentions of the respondent and in particular without prejudice to the contention that the petitioner has not supplied those cassettes or shorthand notes or transcriptions of the same to the respondent and that, therefore, the same cannot be relied upon by the petitioner, and further without prejudice to the contention that the said evidence is irrelevant, but with a view to save the time of the Court and particularly in view of the fact that they have been proved and exhibited in Election Petition No. 10 of 1990 after due evidence was led, the same be exhibited and the proof of these cassettes as regards the recording of the cassettes by the witness and production of the cassettes from proper custody may be dispensed with and the same be exhibited here. I recorded the said statements in the notes of evidence accordingly the audio cassettes recorded on 29th January 1990 and 24th February 1990 and their transcriptions and also the shorthand notes and their transcriptions have all been exhibited in the present proceedings.
22. These cassettes and the transcriptions have also been exhibited in Election Petition No. 14 of 1990. In both the matters, I have taken a view that the extracts of the speeches made by Bal Thackeray, in particular, do constitute the offence of corrupt practices within the meaning of section 123(3) and 123(3a) of the Act, 1951. I have referred to those portions of the speeches of Bal Thackeray which are objectionable. I think, it is not necessary for me to repeat those portions in my judgment in the present case, though I will briefly comment upon it a little later on.
23. As regards the speeches given by Pramod Mahajan in both the meetings, I have not dealt with the same. I propose to do it here inasmuch as the respondent here is a B.J.P candidate and the said Pramod Mahajan is a leader of B.J.P. In fact, the petitioner in the petition itself has set out in paras 12 and 20 of the offending parts of the speeches made by the two leaders. There is no denial of the fact that the leaders had uttered those statements. The only contention is that the speeches should be understood in its totality and the whole theme has to be looked into to draw the correct inference. Therefore, in my view, undoubtedly the extracts referred to in paragraph 12 and 20 and particularly in sub-paragraphs (b) to (g) of para 20, which relate to the speeches given by Pramod Mahajan are the appeals made to the voters to vote on the basis of Hindu community or religion and, therefore, would fall within the scope of sections 123(3) and 123(3a) of the Act, 1951. However, since the contention is that the whole speech of Pramod Mahajan gave at Girgaum Chowpatty on 29th January 1990 he has referred to the alliance of B.J.P. The theme appears to be to defeat the Congress and to make sure to release the dream of the Shiv Sena Chief of hoisting the Saffron flag on the Maharashtra Legislative Assembly. He also seeks to criticise the former Chief Minister of Maharashtra Shri Sharad Pawar. He then says that the candidates of Shiv Sena and Bharatiya Janata Party will be elected from Banda to Chanda. He then says in Kashmir, leave aside the safety of the Hindus, but even the unity and integrity of the country is in danger. He appeals to the voters to make the B.J.P.-Shiv Sena alliance victorious in Maharashtra. Taking the speech in isolation, I may say, there is not much of an appeal in this speech on the basis of religion. The main theme appears to be to see that the alliance is ensured of its victory.
24. In the other meeting held at Shivaji Park on 24th February 1990, extracts of which are to be found in para 20(b) and (g) of the petition. He is more explicit therein. The relevant portions of the speech of Pramod Mahajan are as follows :
'Therefore, friends, our Government will of course provide food, clothing, shelter, schools and dispensaries, but an ever more important issue is involved in this election. The issue involved in this election is of Hindutva. It will be decided in this election whether the flame of Hindutva, which we lighted in the last election will grow bigger or will be extinguished. The whole country's attention is riveted to this election. Our fourteen candidates were elected members of Parliament on the plank of Hindutva. We displayed our strength-whereupon Sharad Pawar remembered,'. We are Hindus and we are proud of it. Like the Satan quoting the Bible, Sharad quoted Bhagvat Gita. Now, he has remembered that they are Hindus and they feel proud of it. The advertisement was printed by the Congress but they got frightened the next day (as) he felt that being proud of Hindutva would not be of any use, since all the Hindus would vote for Shivsena-B.J.P. only. (They realised that), we are like the washerman's dog, which belongs neither to the home nor to washing place. So the next day an advertisement was put up (proclaiming that) we are Hindus, we are also Muslims, Sikhs, Christian, Parsis, Buddhists even women, men and the middle sex. We are all types that may be existing what sort of advertisements they are publishing.'
Pramod Mahajan in the said speech then refers to the facts that Sharad Pawar had gone to break the coconut before the Goddess Tulja Bhawani and he had bowed three times before her. So he comments upon this and says that this reminded (Sharad Pawar) of Hindutva. He then refers to the fact that when Rajiv Gandhi came to Shivaji Park, he also said that Hindus are being killed in Shrinagar and had then passed a question as to what was Shiv Sena and B.J.P doing. Mr. Mahajan then gives an answer that they are at a distance of 2000 kms., while Rajiv Gandhi was at a distance of 200 kms. away from Shrinagar and he retaliates Rajiv Gandhi telling about Hindutva. He then says :
'Rajiv Gandhi was once asked by reporters, 'What is your religion ?' Scratching his hairless head he replied, 'I cannot say. My wife is a Christian, my mother is a Hindu and my father is a Parsi. I don't know what is my religion'. I am not angry that your wife is a Christian; but you can call yourself a Hindu (Since) your wife is a Christian, mother is a Hindu and father is a Parsi, the son (Rajiv) is rootless. What did he not say that he is a Prime Minister belonging to three religions and now, he is teaching us Hindutva and the wisdom of the Hindutva. Who is Farooque Abdullah's friend or we Who was Shaikh Abdullah's friend-his grand father or our grand father Who sowed this poison in Kashmir-they or we For Rajiv Gandhi to give a speech on Hindutva is like a prostitute lecturing on chastity (cheers). Hence, the banner of Hindutva is no longer in the hands of Rajiv Gandhi; and certainly not in the hands of Vishwanath Pratapsingh. When I see the cap on his head I am reminded of the Nizam. Did he go to the temple after being elected He went to see Shahi Imam. Friends, the time is fleeting. There is much to say (but) I have come here to ask you only one question. (Sounds of commotion among the audience) Therefore, what is wrong if we have lit the Flame of Hindutva. This election will decide whether the flame of Hindutva will be extinguished or grow bigger. Friends, this election is not about such dispute as to at whose door step yours or mine pipes, latrines, gutters, water and garbage are lying. This election is about (the fact that) the country stands on the threshold of partition. The tri-color flag of India is being hurt in Kashmir. The green flag of Pakistan is fluttering there. Slogans of 'Hindustan Murdabad' are being raised. Slogans of 'Pakistan Zindabd' are being shouted. Hindu temples are being raised with the help of bulldozers, Hindus have to migrate elsewhere. If the flame of Hindutva is extinguished. In Maharashtra these traitorous muslims will become so powerful that they will not fail to convert India into Pakistan; remember this, Sena-B.J.P. is not against patriotic muslims. When our muslim sister came here to speak, we were the loudest in applauding her because we certainly want patriotic muslims. But if this claim of Hindutva remains burning, it will grow into a fire in no time and that fire will not fail to burn anti-national muslims to ashes. Such is the power of Hindutva.'
He then exerts the voters as follows :
'Hoist this Saffron flag of Hindutva on the Legislative Assembly. I do not know when the (serial) Mahabharata will end on the television. It will take some time yet. But the chapter of way in Maharashtra will be fought on date 27th. That is why Balasaheb has told you-given a call. What Krishna had to tell Arjun, has been told and is over. Now it is a test for Arjun. Lift up the bow of Shivsena. Armed with the bow and arrow, destroy this Kauravas in the form of Sharad Pawar. Once these Kauravas are destroyed by your bow and arrow, the lotus of prosperity will most certainly grow in Maharashtra. Bear this in mind.'
In the earlier part of his speech, he (Pramod Mahajan) ridicules the various Congress leaders and also criticises the Janata Dal. He also deals with certain problems, such as, poverty, granting of loans to farmers and how they can be free from debts, granting of certain minimum wages to labourers, supply of drinking water to the 38,000 villages, elimination of professional tax and also removal of octroi. By and large, major part of his speech is directed against Sharad Pawar and his Government and also the corruption that is prevalent in the Government.
25. Since in the written-statement the respondent wanted me to consider the speech of Pramod Mahajan in its entirely, in my view, the speeches both at Girgaum Chowpatty and also at Shivaji Park clearly set out that there was an alliance of B.J.P. and Shiv Sena and the appeals is to the voters to make the said alliance successful in the ensuing elections. It is true, in the speech made at Shivaji Park, Pramod Mahajan deals with some of the problems which have nothing to do with religion or community as such. But it does not mean that he has not advocated or canvassed on the basis of religion or community. The theme is the same as in the case of the speeches of Bal Thackeray. Broadly, the view is that Hindutva should be equated with nationalism and those who are opposed to Hindutva are anti-nationalists. This is the kind of thinking of Bal Thackeray, which I commented upon in the earlier two petitions. I think, if the same yardstick is applied, the speech given by Pramod Mahajan, particularly the offending parts referred to above, would necessarily fall within the scope of sections 123(3) and 123(3A) of the Act, 1951.
26. In Election Petition No. 10 of 1990, when the Advocate appearing for the petitioner in that matter, submitted that I should take into account the speeches made by the leaders other than Bal Thackeray, I had not accepted the submission. In that connection, I had observed as follows;
'151. Mr. Kotwal wants me to consider the speeches given by one or two other leaders, not as and by way of an additional item of corruption, but to understand the meaning and context of Hindutva as canvassed by respondent No. 1 and Bal Thackeray. According to me it is not necessary for me to consider these speeches. I may also mention, firstly, that the extracts of those speeches have not come on record in the video cassette 'Avhan Ani Awahan'. It is only such of the parts of the speeches that have come on record in the video cassette that can be taken into account for the purpose of holding that the charge as against respondent No. 1 is proved or not proved. Secondly, having regard to the hierarchical nature of the party no leader in Shiv Sena can anything other than what the Supreme leader has said. They can only amplify. That is either have nor there.'
27. Mr. Sathe submitted that the main reason for considering the speeches given by Bal Thackeray as an integral part of the charge was that the extracts of his speeches came to be incorporated in the video cassette 'AVAN ANI AWAHAN' and the said cassette was displayed in the Constituency. It was carried through 'Samna' and other newspapers to the Constituency concerned. He, therefore, submitted that otherwise the speeches given by the leaders outside the Constituency could not have been considered as relevant at all. Mr. Sathe, therefore, submitted that in the present case since there is no evidence of any audio or video cassettes having been displayed within the Constituency and since there is no evidence that these speeches have been carried, into or conveyed to the Constituency, these speeches by themselves cannot be considered as a part of the charge itself. In that connection, he drew my attention to the following passage, again in the same Judgment at para 128, which is as follows :
'If there had been no video cassette and if there are no other materials to say that respondent No. 1 canvassed on the basis of Hindutva, during the period, then perhaps it could have been validly contended that the earlier speeches could not have been looked into. If you are looking into the earlier speeches it is not because those speeches by themselves have become relevant but because the extracts from those speeches have been incorporated in the video cassette it is in that sense the earlier speeches become relevant in the present case. If I am holding respondent No. 1 as guilty of the charge as contemplated under section 123(3) of the Act, certainly it is not on the basis of his earlier speeches as such, but it is on the basis of his earlier speeches as have come on record, in the video cassette which has been displayed in the Constituency.'
28. In answer to these contentions, Mr. Vashi has posed the following three questions :
(1) Whether the two speeches at Girgaum Chowpatty and Shivaji Park given by the leaders of both the parties by themselves constitute an appeal to voters in this Constituency, in the name of religion ?
(2) Whether from the facts and circumstances, it could be said that the respondent's consent is inferred ?
(3) Whether the speeches made by Bal Thackeray and other Shiv Sena leaders in these two meetings, on the facts as they are binding on the respondent ?
29. Mr. Sathe has submitted that, firstly, there is no alliance as such between the B.J.P and Shiv Sena. Secondly, the speeches given in these meetings are not binding on the respondent. Thirdly, the speeches given by Pramod Mahajan or for that matter by any of the leaders of the respondent will not be binding on her, if those speeches go beyond the limits of the B.J.P. Constitution and the B.J.P. Manifesto. Fourthly, he submitted that there is no evidence whatsoever to show that the respondent had consented expressly or impliedly for any of the speeches given by these leaders in these meetings. Fifthly, he has submitted that these two meetings were outside the Constituency and that, therefore, they have no relevance for the purpose of bringing the charge as against the respondent. Lastly, he has submitted that there is no evidence whatsoever to show that the speeches given in these two meetings or the appeals made in these two meetings have been conveyed to the voters in the Constituency at Matunga. I will deal with each of these submissions.
30. On the question of alliance between the two parties, the petition itself describes the same as B.J.P. ....... Shiv Sena alliance. In the written-statement, the respondent has stated that it was only an understanding between the two parties. In her evidence, she has stated that there were only seat adjustments. She has pointed out that in 1989, the B.J.P. had seat adjustment with Janata Dal in various parts of the country and with Shiv Sena in Maharashtra. Even in Maharashtra, they had seat adjustment with Janata Dal in the Matunga Constituency as also at Rajapur Parliamentary Constituency where Madhu Dandavate was contesting from Janata Dal. In the last elections for the Assembly, they had seat adjustments only for the purpose of defeating Congress and to eliminate corruption.
31. In support of her contention, she produced a resolution passed by the Maharashtra State Executive of B.J.P on 4th/5th February 1989 (Exhibit No. 2). The resolution sets out in detail how people have no faith in Rajiv Gandhi and in the people who are governing and how various problems have cropped up. Because of such administration, the resolution says, that the B.J.P. has taken a stand to have a straight fight by putting up candidates against the Congress by bringing together Janata Dal, Peasants and Workers Party, Republican Party of India, Shiv Sena, so as to defeat the corrupt and inefficient Congress (1) Government, both at the Centre and State level. The respondent has stated in her evidence that the seat adjustment in Maharashtra was pursuant to this resolution.
32. Whatever be the stand of the respondent, the following facts seem to have been established. Admittedly, there were joint meetings of the B.J.P and Shiv Sena during the last election. Both the meeting at Girgaum Chowpatty and Shivaji Park where such joint meeting were held, there is nothing to hold that other party leaders or parties have joined in such meeting. The said meetings were addressed by the top leaders of Shiv Sena and B.J.P. In the first meeting held on 29th January 1990, candidates of both the parties were introduced to the audience. The admission is that the meeting was conducted by Mr. Kirit Somaiya (General Secretary of the B.J.P. Bombay City), while it was addressed by Pramod Mahajan (the then Secretary of B.J.P. in the State of Maharashtra). So also in the meeting held on 24th February 1990, the leaders of both the parties together with the candidates were present. The meeting there also was addressed by the leaders of both the parties. Even in the meeting held in the Constituency on 8th February 1990 and 15th February 1990, leaders of both the parties were present. In the meeting held on 8th February 1990 there were Shiv Sena leaders as also B.J.P. leaders. Again, in the second meeting held on 15th February 1990 there were leaders from both the parties. It has also come in evidence that the respondent herself had her main Election Office just outside the Wadala Railway Station. In that office there were the flags of B.J.P. and Shiv Sena. Whatever be the nature of the evidence, however, slender it may be evidence brought by the petitioner shows that when the impugned posters were being pasted at the Junction of Laxmi Narayan Lane, they saw a taxi, which again had the flags of B.J.P. and Shiv Sena. That would also show, prima facie, that the campaign was done jointly. The respondent herself admits that the workers of Shiv Sena worked for her in her area. Similarly, in the other Constituencies where Shiv Sena candidates were contesting, B.J.P. workers had worked for them. In addition to the above, Mr. Vashi has produced a booklet issued by Shiv Sena and B.J.P., which is Exhibit 'H' in these proceedings. The said booklet (Exhibit 'H') called 'SHIV SENA-BHAAJAP VACHANNAAMA' has been officially published by B.J.P. and Shiv Sena and this booklet was circulated all over Bombay to the workers of B.J.P. and Shiv Sena and also to the office bearers of both the parties. That, of course, may not be considered as a manifesto, but it contains promises by the said two parties together. This would show that there was a joint campaign of the said two parties together all over the City of Bombay, showing thereby that there was a joint appeal to the voters for Votes for B.J.P. and Shiv Sena candidates.
33. What is significant is that in all these meetings, the leaders have appealed to the voters to vote for the candidates put up by B.J.P. and Shiv Sena. In fact, in the meeting held at Girgaum Chowpatty and Shivaji Park, both Bal Thackeray and also Pramod Mahajan, have directly appealed to the voters to vote for B.J.P. and Shiv Sena alliance, called 'YUTI'. Even in the meeting held in the constituency, they have again appealed to the voters for votes in the name of B.J.P. and Shiv Sena alliance. In the meeting held on 8th February 1990 (Exhibit 'D'), the appeal is to elect B.J.P. -Shiv Sena alliance candidates. In the meeting held on 15th February 1990 (Exhibit 'E'), Mr. Kirit Somaiya (General Secretary of B.J.P.) has expressly appealed to the voters 'to make victorious B.J.P.- Shiv Sena alliance candidates for the Assembly Elections.' When Pramod Mahajan and Kirit Somaiya, the leaders of B.J.P. have expressly stated so in the public meetings that there was an alliance of B.J.P.- Shiv Sena, whatever be the purpose for which the alliance took place, I cannot understand as to why and how the respondent can say that there was no alliance, but only a seat adjustment between the two parties. It was a meaningless contention. They decided together, campaigned together, held meetings together and appealed to the voters together calling it by whatever name the party desires. It is the joint appeal one for the other and in that sense each one is bound by the appeal made by the other. In my view, the resolution (Exhibit No. 2) by itself does not tell the whole truth. The resolution, of course, was passed with a view to see that as many as parties as they could, join against the Congress. But that does not mean that when such an alliance was formed in the City of Bombay or in the State of Maharashtra, the B.J.P. stuck to the resolution and did not form any alliance. The resolution can also be considered as the basis for coming together. The question is how they carried on the campaign? The answer is that they carried on the campaign openly and jointly in all the constituencies and under the joint leadership of both the parties. It is in this sense, Mr. Vashi's contention will have to be accepted.
34. Mr. Sathe's second contention is that the speeches made in the two public meetings are not binding on the respondent for two reasons. Firstly, there was no consent from her to the leaders to make these speeches. Secondly, assuming that there was any such consent, she could not have consented to the same, inasmuch as, the B.J.P. had its own constitution and also its own manifesto and she contested the election on the basis of her own party's programmes and policies. I will deal with the question of consent of little later on. But as regards the contention that they contested in accordance with the constitution and the manifesto of B.J.P., I say that whatever be their constitution or the manifesto, the evidence shows that the leaders of B.J.P. had appealed in the name of Hindutva, which I have already characterised it as contrary to section 23(3) of the Act, 1951. The respondent has produced before me the constitution of B.J.P. (Exhibit 1) and the Election Manifesto (Exh. 3) of B.J.P. Mr. Sathe drew my attention to some of the provisions of the constitution of B.J.P. and pointed out that there is nothing in the constitution of B.J.P. which can be said to be violative of any of the provisions of section 123 of the Act, 1951. So also with regard to the Manifesto, Mr. Sathe further submitted that unlike Shiv Sena, B.J.P. has its constitution which provides for elected leadership based on democratic principles. He also submitted that there is no provision in the constitution of B.J.P. which make any leader of the party a supreme as in the case of Shiv Sena. The constitution expressly says that no member will hold the post of the President consecutively for more than two full terms. He relied on the constitution to point out that if any member of the party speaks outside the limits of the constitution of the party or contrary to the objects of the party, no member of the party is bound by such statements. Again, in the Election Manifesto, there is nothing to indicate that it contains any appeal to secure votes on the basis of religion or community. If, therefore, Pramod Mahajan had spoken beyond the cope of the Manifesto of B.J.P., the submission is that he might have expressed his private views which are not binding on a member of the party. When the respondent was asked, she admitted that she was present in the meeting held on 29th January, 1990. But she submitted that whatever was said in that meeting would be acceptable to her if the same was in conformity with the manifesto and the constitution of B.J.P. She also stated that there was no common plank between B.J.P. and Shiv Sena and if any B.J.P. office bearer speaks anything which is not in conformity with the party's manifesto or constitution, she would not agree to the same. When it was pointed out to her that Pramod Mahajan is an office bearer and an All India leader of B.J.P., she admitted the same. But she stated that she did not remember what Pramod Mahajan spoke. When she was asked a general question as to whenever an All India leader gives speech during an election campaign, he would be speaking on behalf of the party, she added that such a leader may also express his own views. She was asked as to whether whatever Pramod Mahajan spoke was in accordance with the constitution or manifesto, her answer was that she did not remember. Later on, in her cross-examination, she admitted that she had not agreed with the speeches given by Bal Thackeray and Pramod Mahajan. However, she admitted that she never told her voters that she did not agree with Bal Thackeray or Pramod Mahajan.
35. Her attention was drawn to the statements made in paras 19 and 20 of the petition. Para 19 contains the speeches made by Bal Thackeray wherein he has stated that the said alliance was contesting elections in the name of Hindutva and to fight for Hindutva. In her written-statement she had not denied the same. When she was asked about it, her answer was that she could not have denied the statement as the same had come in the newspapers and she admits 'I could not say Bal Thackaray did not appeal on the basis of Hindutva.' Her attention was drawn to the allegations made in para 20, sub-paras (b) to (g) of the petition, containing the extracts of the speeches of Pramod Mahajan. She was asked as to whether she would accept these statements. Her answer was that she would not accept these statements. When she was asked as to why she did not say so in her written-statement, she was unable to answer the same.
36. Therefore, this clearly indicates that whatever be the constitution or the manifesto of a party, if the leaders of these parties have canvassed on the basis of religion, community, race, caste, etc., as would come within the scope of corrupt practices under section 123 of the Act, 1951, the constitution or the manifesto of a party cannot be a shield to such a plea. What the petitioner has to do is to establish that the candidate had appealed on the grounds which would constitute corrupt practices. If the petitioner has established the same, even though to the knowledge of the candidate what the candidate was doing was contrary to the constitution or the manifesto of the party, which puts up the candidate, the candidate can be said to be guilty of corrupt practices.
37. What is important in the present case is that admittedly the meeting on 29th January 1990 at Girgaum Chowpatty made for the purpose of introducing or announcing the candidates of the alliance. It was in this meeting that such an appeal was made to the voters. The respondent was present in the said meeting. She had at no time protested against what the leaders spoke in the said meeting. In the witness box, the respondent says that she would not accept what Bal Thackeray says. But she had not said so either in the said meeting or at any time subsequent to that in the election campaign. The leadership being common, the evidence clearly indicates that the respondent has accepted what was said in the said meeting. She has not even said at any time thereafter disapproving what Pramod Mahajan, her own leader had said, by writing to the party itself, if not to the concerned person. It is for her to bring such evidence on record, if she wants to disapprove anything which would be hit by the provisions of section 123 of the Act, 1951. She has not done that even in the written-statement. The conduct of both the party leaders clearly indicates that whatever be the constitution or the manifesto of each of the two parties, they had campaigned together as they had done so, in all these meetings, and to that extent they are bound by each other's acts of commission and omission. In fact, she came with a clever answer stating that she did not remember what these leaders spoke. That is surprising. She also said so when she was asked about her own meetings as to what she said on 8th February 1990 and 15th February, 1990. Again, her answer was that she did not remember. I think, that is chicanery to avoid a direct answer, and it is deliberate. If evidence is led as what the candidate had done or said, the elected candidate must explain what he or she actually did or say in her own meetings. Merely saying that she did not remember is not sufficient. It is true, corrupt changes have to be proved as in a criminal trial, but there is a basic difference between a criminal trial and a trial in an election petition. In an election trial, the respondent cannot just remain silent and say that the petitioner has to prove everything and she would not open her mouth. She has a duty to tell the Court as to what she did or what she said. In the absence of any such evidence on the part of the respondent and by only saying that she did not remember what she said or did, the Court will have to act only on the evidence of the petitioner. By adopting such an attitude on the part of the respondent, the value of the evidence led by the petitioner would not suffer, even though it may be a slender evidence. But that becomes acceptable inasmuch as the respondent who is the best person to say as to what she did or said would not come out with the same in her evidence. Ultimately, the Court has to decide on the basis of a fair assessment of the material on record, indicating what she must have said in her appeal to the voters.
38. This takes me to the contention relating to the consent of the respondent with regard to the speeches made by the leaders in the said two meetings and also in the meetings held on 8th February 1990 and 15th February 1990. Mr. Sathe submitted that as far as the first meeting of 29th January 1990, is concerned, she had attended the said meeting, but it cannot be said that she was responsible for calling or inviting the leaders in the said meeting. As far as the second meeting is concerned, according to the evidence of the respondent, she was there only for some time and that, therefore, it cannot be said that all the statements that were made in the said meeting, would be binding on her. This latter contention cannot be accepted inasmuch as, in the written-statement she has not stated that she was there only for some time in the said meeting held on 24th February 1990. She could not also explain in the witness-box as to whose speeches she had heard when she attended the meeting on 24th February 1990. She conveniently says that she does not remember who were speaking when she was there and at what point of time she left the meeting. I am not satisfied with these answers. Mr. Vashi has rightly said that if she was unhappy with the speeches made on 29th January 1990 by the leaders of the alliance and if these speeches were against the Constitution or the manifesto of the B.J.P., why did she attend the meeting on 24th February, 1990. The very fact she attended the meeting on 24th February, 1990 knowing full well what the leaders had uttered earlier and knowing full well that was the last campaign public meeting before the election, would indicate that she was equally eager to attend the meeting as that would further her prospects in the election. She depended on these public meetings very much. I cannot understand how by saying that she was there for some time, she could wriggle out of the situation. Either she agrees or disagrees with what the leaders had spoken. By remaining there for some time, it cannot be said that she agrees in part and disagrees with regard to the other. Therefore, I must necessarily held that she knew full well as to what these leaders would canvass and such canvassing and appealing to the voters was very much relevant and necessary for furthering the prospects of all the candidates of the alliance, including herself. It is well known that in an election campaign, more than the street corner meetings addressed by the respective candidates, the public meetings addressed by All India leaders and addressed by the giants of the party, assume considerable importance and very often become the determining factor in the election prospects. These meetings are not held causally, as the respondent wants to suggest.
39. Mr. Sathe relied on number of cases to show as to how consent should be established by the petitioner before the respondent is held guilty of any corrupt practice. In the case of Samant N. Balakrishna v. George Fernandez, reported in : [1969]3SCR603 , we have the following Head Note:
'To establish corrupt practice, by an agent other than election agent, avoiding the election, the consent on the part of the returned candidate to the commission of corrupt practice must be proved. There is no doubt that the consent need not be directly proved. The principle of law is settled that consent may be inferred from circumstantial evidence but the circumstances must point unerringly to the conclusion and must not admit of any other explanation. Although the trial of an election petition is made in accordance with the Code of Civil Procedure, it has been laid down that a corrupt practice must be proved in the same way as a criminal charge is proved. In other words, the election petitioner must exclude every hypothesis except that of guilt on the returned candidate or his election agent. A consistent course of conduct in the canvass of the candidate may raise a presumption of consent. But mere knowledge of or connivance at the corrupt practice is not enough to infer corrupt practice. Similarly the similarities of ideas or even of words cannot be pressed into service to show consent.'
In this case, the election of George Fernandez was challenged. One Mr. Atre who was running a newspaper had supported Mr. Gorge Fernandez. In that connection, there was a meeting at Shivaji Park, in which Mr. Fernandez spoke. It was alleged that there was similarity of language between the speech of Mr. Fernandez given at Shivaji Park and the material that appeared in the 'Maratha', which came in the Column 'George Fernandez Election Front'. The contention was that what was published in these column in favour of Mr. Fernandez was to the knowledge of Mr. Fernandez and that therefore, Mr. Atre had made a common cause with Mr. Fernandez for promoting his election campaign and that, therefore, in law he becomes an agent of Mr. Fernandez and he should become liable. In was in this context, the Court set out the above mentioned principles. Therefore, whether there is consent or not depends upon the facts and circumstances of each case. It is, therefore, necessary that the petitioner must prove that the respondent had consented to the propaganda, but that consent need not be express. It can be inferred from facts and circumstances. As stated herein, the petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent. The only explanation with regard to there utterances made by the B.J.P. Shiv Sena alliance leaders is that is contrary to the B.J.P.'s own constitution and the manifesto. If that contention is not maintainable, as mentioned above, and since the statements were all made in her own presence in both the meetings, it can as well be said that the statements were all made with her consent. Her conduct in attending the meeting on 29th January 1990, coupled with the fact that she had knowledge of what was said in the said meeting and yet again, she attending the meeting on 24th February 1990 makes the said conduct consistent with what she has been canvassing and appealing and that would naturally raise a presumption of consent.
40. Mr. Sathe relied on the case of Surinder Singh v. Hardial Singh, reported in : [1985]1SCR1059 to say that consent must be strictly proved. There is no dispute about this proposition. But it is well settled that it can be inferred from the facts and circumstances of each case.
41. Mr. Sathe also relied on the case of Azhar Hussain v. Rajiv Gandhi, reported in : [1986]2SCR782 for the purpose of showing that consent has to be pleaded and proved and in the present case, according to Mr. Sathe, no such consent has been pleaded or proved. I am unable to accept this statements of Mr. Sathe inasmuch as consent has been pleaded in the petition and has also been established by various facts as referred to in the foregoing paragraphs.
42. He also drew my attention to the case of Ram Singh v. Col. Ram Singh, reported in : AIR1986SC3 again for the same proposition. The consent can be explicit or implicit depending on the facts and circumstances of each case.
43. The next case cited by Mr. Sathe is the case of Jagdev Singh Sidhani v. Pratap Singh Daulata, reported in : [1964]6SCR750 . He relied on the general observations contained in para 12 of the above case to say how corrupt practice should be proved i.e. not by mere preponderance or propositions but by cogent and reliable evidence beyond reasonable doubt. In the present case since the meetings are admitted and her presence is admitted and the speeches are proved, the only limited question is whether from all the facts and circumstances it can be reasonably inferred that the respondent had consented to what the leaders had said in these meetings. I cannot understand as to what infirmity is there if it can be said that the facts and circumstances clearly indicate that the respondent was a consenting party to what was going on in these public meetings as her own party leaders along with the leaders of Shiv Sena were appealing to the voters to vote on the basis of Hindutva, which was to ensure her prospects in the election.
44. The last is the case of (S. Harcharan Singh v. S. Sajjan Singh), reported in AI.R. 1985 Supreme Court 236. Here again, there is no different proposition with regard to the element of consent required to be proved by the petitioner.
45. Mr. Vashi, in turn, cited the case of Ram Sharan Yadav v. Thakur Maneshwar Nath Singh, reported in : [1985]1SCR1089 for the purpose of showing that consent can be inferred on the basis of facts and circumstances of each case. So also in the case of Sheopat Singh v. Harish Chandra, reported in : AIR1960SC1217 wherein the appellant had knowledge of the commission of corrupt practices by his men and such acts were repeated regularly on certain days, the Court was right inferring that the appellant must have consented to that Mr. Vashi submitted that the respondent had knowledge of what the leaders spoke in the meeting held on 29th January 1990. Despite that knowledge, she again attended the meeting on 24th February, 1990 and, therefore, in these circumstances, together with all other facts and circumstances as mentioned above, the Court can legitimately draw an inference that she had consented to what the leaders spoke in these two public meetings.
46. This takes me to the next contention of Mr. Sathe. His submission is that the speeches of Bal Thackeray, Pramod Mahajan and other leaders were given outside the constituency in question and, therefore, the same cannot be considered. He relies on the observations quoted above in the Election Petition No. 10 of 1990. His contention is that only such of the appeals as are made within the constituency can constitute corrupt practice but not the appeals made outside the constituency.
47. As regards the observations in the Election Petition No. 10 of 1990, the question raised herein has not been directly canvassed. Moreover, having regard to the facts and circumstances of that case, it was not necessary for me to consider these contentions because the extracts of the speeches of Bal Thackeray had been incorporated in the video cassette and the video cassette had been displayed in several booths and places within the constituency. The respondent, in that case, had also accepted whatever Bal Thackeray had stated. But these things do not indicate that I had laid down any such proposition that the appeal for the votes made outside the constituency cannot be considered at all.
48. It is common knowledge that leaders of major parties and All India parties go round the country for their election campaign. These days they do speak in Door Darshan and Akashwani and a definite time slot is allotted to each of the major parties. The media of press gives wide publicity to the speeches given by the leaders, at different places. The political parties also arrange public meetings wherein members of the public from Chowpatty for the City of Bombay as a whole. How do we consider these speeches? Are we do ignore them, even though the appeals amount to corrupt practice? Or are we to restrict them to the particular constituency in which the meeting is held even though the appeal is for all the voters even outside the constituency?
49. Normally, a candidate appeals to his voters within his constituency. But in the case of leaders of political parties, they are concerned not only with their own constituency, but also with all the other constituencies wherein their candidates contest the election. Therefore, it is legitimate to presume that such public meetings are held at different places mainly for promoting the prospects of success for their party candidates. The test is not the place; the test is the contents of the appeal made to the voters. If the leaders make an appeal to the public at large, and the appeal is violative of section 123 of Act, 1951, it must necessarily affect all the candidates who have depended on such appeal to better their chances of success. Otherwise it would lead to anomalous situation wherein the candidates have to read within the law, the leaders would be free to appeal with no-holders-barred. That, I think, is antithetic to any concept of rule of law which is the foundation of all democracy.
50. In law, a leader who makes such an appeal, is the agent of the candidates. He is not an election agent, but he is the other agent who speaks on behalf of his candidates. Mr. Vashi, in this connection, drew my attention to certain cases. Firstly, he relied on the case of Mani Gopal Swami v. Abdul Hamid Choudhury, reported in A.I.R. 1959 Ass 200 wherein we have the following passage:
'(4) The expression 'agent' has been defined in Explanation (1) to section 123 of the Representation of the People Act, 1951 (hereinafter called the Act). It includes an election agent, a polling agent and any person, who is held to have acted as an agent in accordance with the election with consent of the candidate. For the purpose of the Act, the expression 'agent' has a much wider connotation than it is ordinarily understood to have under the law of contract.
Anybody, who sets in furtherance of the prospects of the candidates's election may be said to be an agent of the candidate concerned, provided he does so with the consent of the candidate. This consent may not be necessarily an gathered and implied from the circumstances of the case. Under the Act, an 'agent' includes not only a person, who has been specifically engaged by the candidate or his election agent to work for him in the election, but also a person, who does in fact work for him and whose services have been accepted by the candidates.
Thus an association of persons or a society or a political party and its prominent members, who set up the candidate, spender his cause and work to promote his election, may be aptly called the 'agent' of the candidate for officious intermeddler in the election or a mere volunteer, then of course the candidate cannot be said to have any responsibility for his action, even though the person may have acted for the candidate's benefit and with a view to advance his interest in the election.'
51. This finds support in the case of Abdul Rahiman Khan v. Radha Krushna Biswas Roy, reported in : AIR1959Ori188 . The third case is the case of Inder Lall Yugal Kishore v. Lal Singh Mukund Singh, reported in , where, again, the observations in the above Assam case are followed. Mr. Vashi then drew my attention to a Division Bench case of our own High Court, being the case of Sudhir Laxman Hendre v. Shripat Amrit Dange, reported in A.I.R. 1960 Bom 249, wherein we have the following observations:
'In the case of elections, as we have already seen, the expression 'agent' has to be given a wider interpretation and in our judgment, therefore, the Tribunal's view that Mr. Atre was not an agent of Messrs. Dange and Manay with regard to election propaganda is not correct.'
In this case, Mr. Atre was carrying on propaganda in favour of M/s. Dange and Manay. He was a member of the Samiti, of which Mr. Dange was the Chairman. And the Court held that being a member of a candidate's election committee it has been held to be consistent evidence of agency. Mr. Vashi submits that if it can be said that the leaders who are incharge of election campaign do propaganda which would fall within the scope of section 123 of the Act, 1951, then, of course, it could be said that the consent in such case by the candidate is implicit. Therefore, if the facts and circumstances clearly indicate that the candidate has consented to what the leader has said, it becomes binding on the candidate.
52. Thus, in a sense, the sins of the leaders do visit upon a smaller fry, like the respondent, the party candidate, and they have to thank themselves for this situation. That is exactly what has happened in the present case. Pramod Mahajan is admittedly an All India leader of B.J.P. Bal Thackeray and Pramod Mahajan have addressed these two meetings containing appeals which are hit by section 123(3) and 123(3A) of the Act, 1951. The respondent was present in both the meetings. I have also said that her consent can be safely inferred. Mr. Sathe admitted that there is nothing to say that she had called such meetings or that they had addressed the meeting at her instance. In my view it is not necessary. The meetings were definitely the joint meetings of the alliance called by the leaders themselves. All the candidates have attended such meetings of the alliance called by the leaders themselves. All the candidates have attended such meetings, all for making the B.J.P - Shiv Sena alliance victorious. That was the appeal in terms. Certainly the respondent cannot be heard to say that she has nothing to do with the meeting.
53. Mr. Sathe's last contention is that there is no evidence to hold that the appeals made in these meetings have been conveyed to the voters in her Constituency. Mr. Sathe emphasised the fact that in Election Petition No. 10 of 1990. I have given a finding that what was said in these meetings was conveyed through the papers and the video cassettes to the Constituency concerned and that is how the same constituted corrupt practice. However, in the present case there is no evidence of any video cassettes or audio cassettes having been displayed within the Constituency. Mr. Sathe submitted that there is no satisfactory evidence to show that the reports which appeared in the newspapers were read by the voters in the Constituency. He also submitted that there is no satisfactory evidence to hold that the voters from this Constituency had definitely attended these two meetings. I am afraid, all these submissions are misconceived. Firstly, there is no categorical denial about the fact that the proceedings of these meetings came to be reported in various newspapers. Secondly, the Court can legitimately presume that in a city like Bombay, newspapers, both in English and in regional languages have wide circulation and they are generally read by a large number of people. This is not a backward area, or a remote village. This is one of the most advanced cities in India, where people are generally well-informed.
54. But the more important question as posted by Mr. Vashi is why did the respondent attend the meeting at Girgaum Chowpatty. Her own evidence as also her categorical admission is that the meeting in Girgaum Chowpatty was held to introduce the 34 candidates who were contesting on the basis of the B.J.P. and Shiv Sena alliance in the City of Bombay. Mr. Vashi asked; 'introduce to whom ?' It cannot be presumed that the respondent was to be introduced to the voters at Girgaum Chowpatty; it cannot be presumed that the respondent was to be introduced to the voters at Shivaji Park; it cannot be presumed that all the 34 candidates were to be introduced to the voters residing at the place where the meeting was held. Apparently, it was a public meeting where all the leaders had come, and the public were invited. Introduction of these candidates was obviously, to the respective voters of each Constituency where from these candidates were to contest. It is, in that sense, a direct appeal to the voters concerned, by these leaders for and on behalf of each of these respective candidates. So also in the meeting held at Shivaji Park. That was the last public meeting for all the Constituencies in the City of Bombay. That is why all the candidates met at Shivaji Park. Her own evidence shows that publicity in respect of this meeting was given. She admits that a news item had appeared in the newspaper. She also admits that the workers of her party knew that there was a public meeting on 24th February 1990. She admits that the workers might have attended the meeting. But she states that she told the workers not to bother about the meeting but to attend to their work. There is no reason as to why workers were not to attend this meeting. This explanation is an afterthought inasmuch as she has not given any satisfactory evidence as to why her workers were not to attend such an important public meeting to be addressed by the leaders of their respective parties. She also admits that generally when any public meeting is held, boards are put up in the Constituency informing the public that they should attend such meetings. She must give reasons as to why she could not act in conformity with this general practice. She says that no boards was put up in respect of the meeting held on 29th January 1990. But she does not remember whether she had put up any board in respect of the meeting held on 24th February 1990. In other words, she has not given any satisfactory explanation as to why the voters from her Constituency could not have attended these public meetings.
55. Mr. Sathe submitted that it is for the petitioner to prove that voters from the Matunga Constituency had definitely attended this public meeting. His submission is that since the petitioner could not say as to who were present in the public meeting, the inference could be that no member of the Matunga Constituency could have attended the said meeting. It is well settled that while insisting on standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make it well-nigh impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process. (See Harcharan Singh v. Sajjan Singh), : [1985]2SCR159 .
56. This takes me to the evidence relating to the two meetings held on 8th February 1990 and 15th February 1990. The evidence in respect of these two meetings is at Exhibits 'D' and 'E' respectively. Exhibit 'D' is the report from the Election Diary maintained by the Police in respect of the meeting held on 8th February, 1990. There is no challenge to this report. There is no denial about this meeting in the written statement. The leaders who spoke in this meeting included Shiv Sena workers as also the B.J.P. leaders. Amongst them, Vidyadhar Gokhale (a Shiv Sena M.P.) and Jayawantiben Mehta ( a B.J.P. M.P.) were prominent. This again shows that the campaign had been carried on jointly and it supports the theory of Mr. Vashi that there was, in fact, such an alliance operating in every constituency. Apart from all the leaders who spoke in this meeting, the respondent had also addressed the voters. She has not stated in her evidence as to what exactly she spoke in this meeting. She tried to take shelter on the plea that her memory has failed inasmuch as she did not remember as to what she spoke. But when she was asked whether she spoke about 'Ayodhya Mandir-Masjid issue', she initially denied. But when she was shown the report Exhibit 'D', she admitted that she had spoken about 'Ayodhya - Masjid' and about 'Hindutva'. She said that she must have spoken to the effect that 'Hindutva' should be equated with nationalism and appealed to elect B.J.P. - Shiv Sena candidates.
57. In the meeting held on 15th February, 1990, again, we have the evidence from the Election Diary maintained by the Police, which is Exhibit 'E'. The report shows that again the leaders from both the parties had jointly addressed the meeting. There were Shiv Sena leaders and on behalf of B.J.P., Kirit Somaiya was the main speaker. Kirit Somaiya, in his speech, stated that blood in the body of every person is the blood of Hindutva and their victory in the Lok Sabha is not their victory but of the people as a whole and it is a victory in their fight for Hindutva. The respondent, in turn, had stated that she had appealed to the voters to elect Shiv Sena - B.J.P. alliance.
58. This was produced by Police Inspector Chaugule (P.W. 11). It is his evidence that by the time he attended the meeting, some of the speakers had already spoken and he was not present at that time. He stated that there was another officer Mr. Desai, who attended the meeting right from the beginning and report was thereafter made in the Election Diary. The report is in the hand-writing of Mr. Desai. Mr. Sathe submitted that Inspector Chaugule has no personal knowledge of what the speakers said before he came there and that, therefore, the report cannot be looked into. I find no substance in this contention inasmuch as in the written-statement there is no denial of the meeting or of the speakers who spoke in this meeting. The record has been made after the meeting was over. The record was made by Police Inspector Chaugule and S.I. Desai. In the absence of any other evidence, I can safely accept this evidence as contained in Exhibit 'E'. Here again, the respondent has not come with her statement as to what actually she spoke in this meeting.
59. At this stage, Mr. Sathe submitted that since I have already held that the leaders Bal Thackaray and Pramod Mahajan had made appeals which were violative of sections 123(3) and 123(3A) of Act, 1951, and since the leaders are other agents than election agent of the respondent, before I give any finding, I must issue notice under section 99 of Act, 1951. I have not been able to appreciate this submission of Mr. Sathe. Having come to the conclusion that the respondent has committed corrupt practices, may be because of the consent she had implicity given to the speeches given by her leaders, the Court need not wait till a notice under section 99 is issued. I can right now declare the respondent's election as void. It is after such declaration is made, if necessary, and if I have to name any individual person, other than the candidate or her election agent, it is for her to issue notice. It has nothing to do with any party's desire. I am also aware of the fact that the Supreme Court has emphasised the need to maintain purity in election process and, therefore, if anyone is found to have indulged in corrupt practices, it is proper that such a notice be given. Thereafter he must be given an opportunity to cross-examine the witnesses, if he so desires and he has to be heard. But it is not mandatory that in every matter the Court should adopt proceedings under section 99 of the Act, 1951.
60. In the present case, I do not propose to issue any such notice as I do not intend to name them in these proceedings. I understand that as far as Bal Thackaray is concerned, there are already such notices pending against him, I am not aware whether any such notice is pending against Pramod Mahajan. But, I think, if one has regard for the time that is consumed in such electoral battles within the precincts of the Court, particularly at the cost of large number of other urgent matters pending in this Court, I would say that it is not expedient in the interest of justice to issue such notices. A pragmatic approach in all such matters is the paramount need of the hour. I would, therefore, say 'thus far and no further' in matters of this type, in a situation like this, hoping that it is for the leaders to reflect upon what they have done, in their own conscience. It is a sad commentary on our electoral law, despite Court verdicts, election campaigns are carried on in a manner rendering the legal process socially irrelevant ;
61. I, therefore, answer the issues as follows :
Issue No. 1 : In the affirmative as she has impliedly consented to what the leaders of the alliance had said.
Issue No. 2 : Not necessary to answer.
Issue No. 3 : Not necessary to answer.
Issue No. 4 : In the affirmative for the same reason as in Issue No. 1.
Issue No. 5 : Not necessary to answer.
Issue No. 6 : Not necessary to answer.
Issue No. 7 : In the negative.
Issue No. 8 : In the negative.
Issue No. 9 : In the negative.
Issue No. 10 : See below.
ORDER
Petition is made absolute in terms of prayer (a). The respondent shall pay costs of the petition to the petitioner. The amount deposited by the petitioner be refunded to the petitioner. Prothonotary & Senior Master to act on the minutes of the order.
I further direct that a substance of this decision be forwarded to the Election Commission and to the Speaker of the Maharashtra Legislative Assembly and thereafter an authentic copy of my judgment be forwarded to the Election Commission.