Case: Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra &amp; Ors

either religious or the occult.43. Primitive man does practically nothing without making it wear a religious garb because his understanding of the physical world, of human nature, and of social needs and realities, is limited. He surrounds customary modes of action with an aura of superstitious reverence. He is fearful of departures from these lest he is visited by Divine wrath. Modern man, with his greater range of scientific knowledge and better understanding of his own needs as well as of the nature of the Universe, attempts to confine religion to its proper sphere that where he reaches a satisfying relationship between himself and the Divinity he believes in so as to get an inner strength and solace which enable him to overcome psychological crises or fears when confronted with disturbing or disrupting events, such as a Death, or their prospects. He does permit his religion, which should be essentially his individual affair, to invade what are properly the spheres of law, politics, ethics, aesthetics, economics, and technology, even where its administration is institutionalised and it operates as a social force.44. The Secular State, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and creeds. Maitland had pointed out that such a State has to ensure, through its laws, that the existence or exercise of a political or Civil right or the right or capacity to occupy any office or position under it or to perform any public duty connected with it does not depend upon the profession or practise of any particular religion. Therefore, candidates at an election to a legislature, which is a part of "the State", cannot be allowed to tell electors that their rivals are unfit to act as their representatives on grounds of their religious professions or practices. To permit such propaganda would be not merely to permit undignified personal attacks on candidates concerned but also to allow assaults on what sustains the basic structure of our Democratic State.45. Our Constitution and the laws framed thereunder leave citizens free to work out happy and harmonious relationships between their religions and the quite separable secular fields of law and politics. But, they do not permit an injustifiable invasion at what belongs to one sphere by what appertains really to another. It is for Courts to determine, in a case of dispute, whether any sphere was or was not properly interfered with, in accordance with the Constitution, even by a purported law.The validity of Sections 123 (2), (3) and (3A) has not been questioned before us. And, we have explained above what these provisions are meant for.46. To retum to the precise question before us now, we may repeat that what is relevant in such a case is what is professed or put forward by a candidate as a ground for preferring him over another and not the motive or reality behind the profession which may or may not be very secular or mundane. It is the professed or ostensible ground that matters. If that ground is religion which is put on the same footing as race, caste, or language as an objectionable ground for seeking votes, it is not permissible. On the other hand if support is sought on a ground distinguishable from those falling in the prohibited categories, it will not be struck by Section 123 of the Act whatever else it may or may not offend. It is then left to the electorate to decide whether a permissible view is right or wrong.47. According to his own professions the appellant wanted votes for himself on the grounds that he staunchly adhered to what he believed to be Muslim religion as contrasted with Chagla who did not. There is no doubt whatsoever in our minds. that the High Court had rightly found the appellant guilty of the corrupt practices defined by the provisions of Sections 123 (2), 123 (3) an 123 (3A) of the Act by making the various speeches closely examined by us also.48. Lastly we have before us the order for costs made by the High Court in the following terms:"Having regard to the provisions of Section 99 of the Act and Rules 24 and 26 of the Rules framed by this Court under the Act, I order the first respondent to pay to the petitioner the sum of Rs. 12,000 /- for costs. I also order the first respondent to pay to the second respondent the sum of Rs. 3,000/- for costs. There will be no order in regard to costs of the other respondents as they have not filed written statements or appeared at the hearing".49. We think that, although Section 99 of the Act may permit the award of special costs in suitable cases, and, although, the appellant has been found guilty of corrupt practices of quite an offensive kind, yet, the order for costs appears to us to err on the side of severity. If the respondent Chagla is aggrieved in such a manner that he has grounds for some actionable claim against the appellant, he can, if so advised, take other steps which may be open to him under the law. An order for costs should not become a substitute for such other action with which we are not concerned here. Moreover, in the case before us, the petition itself was not filed by the 2nd respondent Chagla. In these circumstances, we do not think that there should have been an order for costs payable by the appellant to the second respondent Chagla. We therefore, set aside the order awarding Rs.. 3,000/- as costs to Chagla. We also reduce by half the costs awarded to the successful petitioner, that is to say, from Rs. 12,000/- to Rs. 6,000/-.We, however, think that the appellant must pay respondents 1 and 2 in this Court their costs occasioned by his appeal to this Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]from the fact that the High Court dealing with this question had, in our opinion, rightly recorded the finding that the issue No. 2, framed on this objection, was specifically given up in its entirety by the learned Counsel for the appellant, so that he could not wriggle out of it by a vague reservation of some right to urge that the affidavit filed was not in proper form, we were not shown any defect of form at all in the affidavit filed. All that was urged is that the relevant affidavit does not give the sources of information so far as corrupt practices under Section 123 (3) and 123 (3A) are concerned. As was pointed out by this Court in Hardwari Lal v. Kanwal Singh, (1972) 2 SCR 742   = (AIR 1972 SC 515  ) this is not a defect of the required form but may, in suitable cases, form theof an objection based on Section 86 and S. 123 (7) of the Act relating to supply of material particulars. It was indicated by this Court in Prabhu Narayan v. A. K. Srivastava, C.A. No. 1174 of 1973, delivered on= (AIR 1975 SC 968  ) that a petition can only be dismissed for a substantial defect.Still another objection was that the Trial Court had erroneously allowed an amendment of the election petition by an order datedReliance was placed upon this Courts decision in Manubhai Nandlal v. Popatlal Manilal Joshi, (1969) 3 SCR 217   = (AIR 1969 SC 734  ) and Samant N. Balakrishna v. George Fernandes, (1969) 3 SCR 603   = (AIR 1969 SC 1201  ), to contend that the amendment asked for should not have been allowed. We have examined the application for amendments of the petition sought by the petitioner and allowed by the Court. We think that the amendments really removed vagueness from the petition by confining the allegations of corrupt practice to what the appellant Bukhari himself had said in his speeches. Attributions of those very statements to his agents, in the alternative, which introduced some ambiguity, were deleted. Another amendment sought was the insertion of names of persons said to have made certain other speeches. The High court had allowed the amendments on the ground that they did not amount to any allegation of a fresh corrupt practice. The question whether the speeches of certain persons other than the appellant were rightly permitted to become theof consideration by the amendment has lost all importance as the appellant has been held guilty of corrupt practices solely for speeches made by himself and we propose to deal with these only. We, therefore, find no force in the objections to the order allowing amendment of the election petition, which only clarified the petitionersare, however, unable to find, from material on record that the conduct at the trial by the learned trial Judge was unfair in any respect. Moreover we think that the only really material questions before the Court for decision, on which we have ourselves reexamined the whole evidence on record, were: Did the appellants speeches contain what was said to beand also sought to be proved by oral evidence supported by the notes of those who are alleged to have heard these speeches themselves? If this was so, was their effect upon the ordinary average voters of this country such as to come within the mischief provided for by any of the three heads of provisions of Section 123 of the Act set out above? These are questions capable of determination objectively irrespective of the subjective inclinations or opinions of the Judge deciding such issues although we cannot, and should not even try to, escape the consequences, upon any case before us, of our conclusions about the purposes and meanings of the relevant provisions of Section 123 of the Act, set out above, reached by applying relevant rules of interpretation of such provisions.In our opinion the High Court had rightly relied upon the tape recorded reproductions of the appellants speeches. It had given three grounds for considering the tape records to be reliable and authentic; firstly, the tape records had been prepared and preserved safely by an independent authority, the police, and not by a party to the case; secondly, the transcripts from the tape records, shown to have been duly prepared under independent supervision and control very soon afterwards, made subsequent tampering with the cassettes easy to detect; and, thirdly, the police had made the tape records as parts of its routine duties in relation to election speeches and not for the purpose of laying any trap to procure evidence.evidence.25. As regards the shorthand notes full shorthand transcripts made by those who heard the speeches, the High Court had treated these also as corroborative evidence which could be used by a witness to refresh his memory as laid down in Section 159 of the Evidence Act. It held that their contents could be brought on record by direct oral evidence in the manner prescribed by Section 160 of the Evidence Act, a course the propriety of which has the support of decisions in this Court in Laxminarayan v. Returning Officer, (1974) 3 SCC 425   = (AIR 1974 SC 66  ) and in Kanti Prasad Jayshanker v. Purshottamdas Ranchhoddas, (1969) 3 SCR 400   = (AIR 1969 SC 851  ). We find no errors in the views adopted by the High Court on these questions.We think that, although Section 99 of the Act may permit the award of special costs in suitable cases, and, although, the appellant has been found guilty of corrupt practices of quite an offensive kind, yet, the order for costs appears to us to err on the side of severity. If the respondent Chagla is aggrieved in such a manner that he has grounds for some actionable claim against the appellant, he can, if so advised, take other steps which may be open to him under the law. An order for costs should not become a substitute for such other action with which we are not concerned here. Moreover, in the case before us, the petition itself was not filed by the 2nd respondent Chagla. In these circumstances, we do not think that there should have been an order for costs payable by the appellant to the second respondent Chagla. We therefore, set aside the order awarding Rs.. 3,000/as costs to Chagla. We also reduce by half the costs awarded to the successful petitioner, that is to say, from Rs. 12,000/e, however, think that the appellant must pay respondents 1 and 2 in this Court their costs occasioned by his appeal to this Court.