6TH ANMCC, 2020

TC-016

1st ONMCC, IMS LAW COLLEGE, NOIDA

MOST RESPECTFULLY SUBMITTED BEFORE

THE HON’BLE SUPREME COURT OF SINDHUSTHAN

MEMORIAL FOR THE APPELLANT

IN THE JOINT MATTER OF

1. CIVIL APPEAL NO. ____/2020

ALLADIN MOSAI APPELLANT 1

VERSUS
STATE OF SINDIABAD & ANR. RESPONDENT 1

2. CIVIL APPEAL NO. /2020

MR. BHOOTNATH JOGI APPELLANT 2

VERSUS
STATE OF NORTHERN PRADESH & ANR. RESPONDENT 2

3. CIVIL APPEAL NO. /2020

KAMLAWATI APPELLANT 3
VERSUS
STATE OF CHHATER PRADESH & ANR. RESPONDENT 3

DRAWN AND FILED BY

COUNSELS APPEARING ON BEHALF OF THE
APPELLANT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS …2

INDEX OF AUTHORITIES …3

STATEMENT OF JURISDICTION …5

STATEMENT OF FACTS …6

STATEMENT OF ISSUES …7

SUMMARY OF ARGUMENTS …8

ARGUMENTS ADVANCED …10

I. WHETHER THE APPEALS BROUGHT BEFORE THE HON’BLE

SUPREME COURT OF SINDHUSTHAN ARE MAINTAINABLE?

II. WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGN

BE BROUGHT UNDER CORRUPT PRACTICES?

III. WHETHER AN ACT SAID AND DONE IN EXERCISE OF RIGHT TO

RELIGION AND FREEDOM OF SPEECH CAN BE BROUGHT UNDER
CORRUPT PRACTICES?

IV. WHETHER AN APPEAL FROM A PERSON FROM MINORITY

COMMUNITY WILL AMOUNT TO CORRUPT PRACTICE IN THE
LIGHT OF PROTETIVE DISCRIMINATION PRINCIPLE ENSHRINED
UNDER THE CONSTITUTION OF INDIA?

PRAYER …26

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LIST OF ABBREVIATIONS

ANR. Another

ASMA All Sindhusthan Mislamic Alliance

CJI Chief Justice of India

CM Chief Minister

DPSP Directive Principles of State Policy

HC High Court

HON’BLE Honorable

I. E That is

JILI Journal of Indian Law Institute

PIL Public Interest Litigation

RNAA Rational Nongrace And Alliance

RPA Representation of People’s Act

SC Supreme Court

SCC Supreme Court Cases

SJP Sindhusthan Janta Party

SMC Sindiabad Mislamic Corporation

SSP Sahujan Samajwadi Party

V. Versus

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INDEX OF AUTHORITIES

PRIMARY SOURCES

STATUTES REFERRED

1) The Constitution of India, 1950

2) The Representation of People’s Act, 1951

CASES CITED

1) Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629.

2) Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188.

3) Das Rao Deshmukh (Dr) v. Kamal Kishore Nanasaheb Kadam (1995) 5 SCC 123.

4) Harcharan Singh v. S. Sajjan Singh, (1985) 1 SCC 370.

5) Jagdev Singh Sidhanti v. Pratap Singh Daulta, AIR 1965 SC 183.

6) Kultar Singh v. Mukhtiar Singh, (1964) 7 SCR 790 : AIR 1965 SC 141 : 26 ELR 300.

7) Manmohan Kalia v. Yash and Ors, (1984) 3 SCC 499.

8) Murli Manohar Joshi v. Nitin Bhaurao Patil, (1996) 1 SCC 169.

9) Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477.

10) Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji, (1965) 1 SCR 712.

11) Ramesh Y. Prabhoo v. Prabhakar K. Kunte, (1996) 1 SCC 130.

12) Saskatchewan (Human Rights Commission) v. Whatcott [(2013) 1 SCR 467: 2013
SCC 11 (Can SC).

13) State of Kerala v. N.M. Thomas, (1976) 2 SCC 310.

14) Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors, (1976) 2
SCC 17.

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SECONDARY SOURCES

LAW JOURNALS, ARTICLES AND REPORTS

1) Allison Harrell, Limits of Tolerance in Diverse Societies: Hate Speech and Political
tolerance Norms Among Youth, Canadian Journal of Political Science, Volume 43, No.2
Diversity and Democratic politics (June 2010) pp.407-432.
2) Amit Bindal, Notes and Comments: Religion, Governance and Corruption: An Analysis of
the Judicial Reasoning in the Election Judgement, 59 JILI (2017) 57.
3) Gupta, Dipankar &Yogesh Kumar, When the Caste Calculus Fails: Analysing BSP's
Victory in UP, 42 ECON. POLITICAL WKLY, 3388–3396 (2007).
4) Iqbal Ali Khan and Kalpana Rani Jayas, Hate Speech and Freedom of Speech: A Legal
Scrutiny, 24 ALJ (2016-17).
5) Mohammad Ghouse, Judicial Control of Protective Discrimination, 11 JILI (1969) 371.

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STATEMENT OF JURISDICTION

It is respectfully submitted before the Hon’ble Supreme Court of Sindhusthan that the
provision under which the Appellants have approached the Hon’ble court is submitted herein
under-

Section 116A of The Representation of People’s Act, 1951

―Appeals to Supreme Court‖—

1) Notwithstanding anything contained in any other law for the time being in force, an
appeal shall lie to the Supreme Court on any question (whether of law or fact) from
every order made by a High Court under section 98 or section 99.
2) Every appeal under this Chapter shall be preferred within a period of thirty days
from the date of the order of the High Court under section 98 or section 99:

Provided that the Supreme Court may entertain an appeal after the expiry of the said period
of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the
appeal within such period

The present memorandum sets forth the facts, contentions and arguments in the present case.

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STATEMENT OF FACTS

1. Sindhusthan is a constitutional democracy with a parliamentary system of government,

the 17th Loksabha elections have been home ground for many allegations of corrupt
practices. In the aftermath of election, there have been three different instances where
election petitions were filed for corrupt practices and similar charges leading to the
cancellation of the returned candidates’ candidature.

2. Alladin Mosai is the President and chief of ASMA. He contested and won election from
Sindiabad constituency. On 25th May 2017 he made a poll pitch to woo his Mislam vote
bank. During his speech, Mosai said “Mislamic population has always been suppressed
in terms of proper representation and development by other higher communities who are
holding the power for decades”. The ruling SJP candidate who lost from the Sindiabad
constituency filed an election petition to probe the speech on the ground of communal
and sectarian appeals. The High Court passed its orders against Mosai cancelling his
candidature. The aggrieved ASMA leader appealed to the SC of Sindhusthan.

3. In Northern Pradesh, Mr. Bhootnath Jogi from ruling SJP party won from Luckpur, a
town with major Mislamic population. He campaigned on various grounds like Mow
Animal protection, Jam Temple and protecting the dignity of women of Sindusthan
against Mislamic aggressors. A social activist named Bistakettlewad filed an election
petition on the grounds of corrupt practices and spreading communal hatred. The High
court decided in favour of him. The aggrieved leader of SJP appealed to the SC.

4. Kamlawati, the first Malit CM of Chhatar Pradesh, thrives of the community’s support.
To regain the support of the self-proclaimed downtrodden community, her election
speeches often reflected appeasement in the garb of hatred and bias towards the upper
caste. People’s Upliftment Organization working for clean politics filed an election
petition in Chattar Pradesh High Court. The High Court set aside the election of
Kamlawati under the corrupt practices. The aggrieved leader appealed to the SC
claiming that S.123 violates the principle of protective discrimination

5. The Apex court has decided to try all these matters jointly to the extent of the scope and
interpretation of Section 123 of RPA, 1951 is concerned.

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STATEMENT OF ISSUES

ISSUE I

WHETHER THE APPEALS BROUGHT BEFORE THE HON’BLE

SUPREME COURT OF SINDHUSTHAN ARE MAINTAINABLE?

ISSUE II

WHETHER SECTARIAN APPEALS DURING ELECTION

CAMPAIGN BE BROUGHT UNDER CORRUPT PRACTICES?

ISSUE III

WHETHER AN ACT SAID AND DONE IN EXERCISE OF

RIGHT TO RELIGION AND FREEDOM OF SPEECH CAN BE
BROUGHT UNDER CORRUPT PRACTICES?

ISSUE IV

WHETHER AN APPEAL FROM A PERSON FROM MINORITY

COMMUNITY WILL AMOUNT TO CORRUPT PRACTICE IN
THE LIGHT OF PROTETIVE DISCRIMINATION PRINCIPLE
ENSHRINED UNDER THE CONSTITUTION OF INDIA?

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SUMMARY OF ARGUMENTS

ISSUE I

WHETHER THE APPEALS BROUGHT BEFORE THE HON’BLE SUPREME

COURT OF SINDHUSTHAN ARE MAINTAINABLE
It is humbly submitted before the Hon’ble Court that the appeals brought before the Supreme
Court of Sindhusthan are maintainable under Section 116A of the Representation of People’s
Act, 1951 which vests power to the Supreme Court to hear an appeal against an order passed
by the High Court under Section 98 or 99 on any question whether of law or of fact.
Furthermore, Section 98 talks about the decision of the High Court at the conclusion of the
trial of an election petition. According to the facts at hand, In the election petitions as tried
under Section 80A of the RPA, 1951, the High Courts in all three cases declared the election
of the returned candidates to be void, which fulfills the conditions as laid down in Section 98,
thus making the appeals maintainable before the Hon’ble Court.

ISSUE II

WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGN BE

BROUGHT UNDER CORRUPT PRACTICES?
It is humbly submitted before the Hon’ble Court that Sectarian appeals to the effect of not
intending to sway voters to vote for a particular party or candidate solely on the grounds of
religious similarities shall not be included under the ambit of corrupt practices as laid down in
Section 123 of The Representation of People’s Act, 1951. Herein, the mere usage of religion,
caste, race, language etc. by an election candidate to discuss injustices and bias faced by a
particular section of the society and seek upliftment of the downtrodden should not be
construed as an act of wrongfully inducing the voters to vote for him because of his religion.
Therefore, sectarian appeals must be looked at objectively, with what is being professed or
proposed by the candidate in his speech given due consideration.

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ISSUE III

WHETHER AN ACT SAID AND DONE IN EXERCISE OF RIGHT TO RELIGION

AND FREEDOM OF SPEECH CAN BE BROUGHT UNDER CORRUPT
PRACTICES
It is humbly submitted before this Hon’ble Supreme Court that decisions of the respective
High Courts should not be upheld as usage of religious symbol by appellant 2 and the
speeches made by the appellants 1 and 3 during the election campaign were in the exercise of
their Right to Religion and Freedom of speech, as guaranteed by the Constitution. The
appellant 2 in no sense made an appeal on the basis of religion and just campaigned on
grounds of Mow Animal, Jam temple and women safety. Had his intentions been that of
spreading hatred and propagating enmity, it would have been translated exactly to the public
and he wouldn’t have won the elections in major Mislamic population constituency.
Therefore, the appellant maintains that the case against him for corrupt practices holds no
merit.

ISSUE IV

WHETHER AN APPEAL FROM A PERSON OF MINORITY COMMUNITY WILL

AMOUNT TO CORRUPT PRACTICE IN THE LIGHT OF PROTECTIVE
DISCRIMINATION PRINCIPLE ENSHRINED UNDER THE CONSTITUTION
It is humbly submitted before the Hon’ble Supreme Court that the principle of protective
discrimination has been enshrined in the Constitution due to the prevailing caste-based
discrimination in Sindhusthan. Malit being a weaker section of the society has been subjected
to injustice and prejudice at the hands of Grahmins. Since there is a societal imbalance, the
Malit community deserves to get the preferential treatment in light with the aforementioned
principle. In the present matter, Appellant 3 when addressed the public, called for
institutionalized reforms by providing adequate representation to her community in the civil
servants’ posts, rigorous law enforcement and stiff jail terms to protect the interest of her
community, all of which are in line with the principle of Protective Discrimination. The
appellant humbly prays to the Hon’ble Supreme Court to reverse the decision taken by the
High Court of Chhatarpradesh and restore Status Quo.

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ARGUMENTS ADVANCED

I. WHETHER THE APPEALS BROUGHT BEFORE THE HON’BLE

SUPREME COURT OF SINDHUSTHAN ARE MAINTAINABLE.

It is respectfully submitted before the Hon’ble Court that the three appellants have
approached the Supreme Court of Sindhusthan to appeal against the decision of High Courts
of Sindiabad, Northern Pradesh and Chhatar Pradesh respectively in accordance with Section
116A of The Representation of People’s Act, 1951. The candidature of the three candidates
was cancelled in the present case as decided by the Hon’ble High courts, leading to a
subsequent appeal in the Apex Court challenging the prior verdict.

Section 116A of Representation of People’s Act, 1951 which reads herein under as –
―Appeals to Supreme Court. —
(1) Notwithstanding anything contained in any other law for the time being in force, an
appeal shall lie to the Supreme Court on any question (whether of law or fact) from every
order made by a High Court under section 98 or section 99.
(2) Every appeal under this Chapter shall be preferred within a period of thirty days from the
date of the order of the High Court under section 98 or section 99.‖1

The three appeals made to the Hon’ble Supreme Court were made by the aggrieved parties
post the judgement passed by the concerned High Courts in accordance with Section 98 of
Representation of People’s Act, 1951 which reads as under-

―Decision of the High Court — At the conclusion of the trial of an election petition [the High
Court] shall make an order —
(a) dismissing the election petition; or
(b) declaring the election of [all or any of the returned candidates] to be void; or
(c) declaring the election, of [all or any of the returned candidates] to be void and the
petitioner or any other candidate to have been duly elected.‖2

1
The Representation of the People Act, 1951, No. 43, Acts of Parliament, 1951.
2
Ibid.

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Grounds for declaring election of a candidate to be void are enumerated in sub-section (1) of
Section 100 of the RPA, 1951 which reads as under-

―Grounds for declaring election to be void –

(1) Subject to the provisions of sub-section
(2) if the High Court is of opinion-
(b) that any corrupt practice has been committed by a returned candidate or his election
agent or by any other person with the consent of a returned candidate or his election agent;
the High Court shall declare the election of the returned candidate to be void.‖3

As per the facts of the present matter, the judgements passed by the High Courts in the three
cases were similar in nature, leading to the cancellation of the appellant’s candidature on
grounds of violation of Section 123 of the Representation of People’s Act, 1951 which is in
adherence with Section 98 (b) wherein the High Court must hear an election petition and pass
an order declaring the election of the returned candidate void. Therefore, the appeals made to
the Supreme Court by the appellants against the verdict of the High Courts are maintainable
under the aforementioned statutes.

Furthermore, Section 116A of Representation of People’s Act states that any question either
of law or of fact is to be heard by the Supreme Court. In the present matter, the question to be
heard before the Hon’ble Court is that of the constitutional validity of Section 123 of
Representation of People’s Act, 1951 which talks about what constitutes as Corrupt Practices
in Elections.

The Corrupt practice of appealing to voters on grounds of religion, race, caste etc. has been
defined in Section 123(3A) which reads herein under as-

―The promotion of, or attempt to promote, feelings of enmity or hatred between different
classes of the citizens of India on grounds of religion, race, caste, community, or language,
by a candidate or his agent or any other person with the consent of a candidate or his
election agent for the furtherance of the prospects of the election of that candidate or for
prejudicially affecting the election of any candidate.‖4

3
Ibid.
4
Ibid.

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Herein, the present case deals with a question of law, in terms of deciding the scope of
Section 123 of RPA, 1951 and to decide as to what can be included as corrupt practice under
the particular section. The first election petition was filed to probe the election speech of
Appellant 1 on grounds of communal and sectarian appeal, which as per the decision of the
High Court was included under Section 123. The second election petition was filed on the
grounds of corrupt practices and spreading communal hatred, and the third and final petition
heard by the High Court setting aside the election of Appellant 3 was on similar grounds of
Corrupt Practices., In both constitutional and statutory interpretation, the court is supposed to
exercise discretion in determining the proper relationship between the subjective and
objective purposes of the law.5 Therefore, the question is before the Apex court to decide the
validity of the said section under which the aggrieved parties have lost their election
candidature

5
Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188.

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II. WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGN

BE BROUGHT UNDER CORRUPT PRACTICES.

It is humbly submitted before the Hon’ble Supreme Court of Sindhusthan that Sectarian
appeals shall not be brought under corrupt practices as given under Section 123(3) of the
Representation of People’s Act, 1951 which reads herein under as,

―The appeal by a candidate or his agent or by any other person with the consent of a
candidate or his election agent to vote or refrain from voting for any person on the ground of
his religion, race, caste, community or language or the use of, or appeal to religious symbols
or the use of, or appeal to, national symbols, such as the national flag or the national
emblem, for the furtherance of the prospects of the election of that candidate or for
prejudicially affecting the election of any candidate.‖

2.1 What constitutes as an appeal on the grounds of religion, caste, race etc. during
election campaign.

It is humbly submitted before the Hon’ble Court that Section 123 (3) of the Act does not
define what constitutes an appeal on the ground of religion, race, caste, community or
language, use of or appeal to religious symbol, and use of or appeal to national symbol. The
legislature has assigned the duty to the courts to determine whether a particular action would
fall within the purview of the provision. The mere discussion of religion, caste etc. during an
election campaign in the form of speeches does not constitute as an appeal made on its
grounds. Herein, the appeals being discussed are of the effect of not intending to sway voters
to vote for a particular candidate or party on the mere grounds of religious affiliations.

It was held by the Supreme Court in the case of S. Harcharan Singh v. S. Sajjan Singh that,
―In substance it would be an appeal on the ground of religion if the act in question has the
effect of giving the impression that it would be irreligious not to vote for a particular party or
person.”6

6
S. Harcharan Singh v. S. Sajjan Singh, (1985) 1 SCC 370.

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The Apex Court held in Ramesh Y. Prabhoo v. Prabhakar K. Kunte that “It cannot be
doubted that a speech with a secular stance alleging discrimination against any particular
religion and promising removal of imbalance cannot be treated as an appeal on the ground
of religion as its thrust is for promoting secularism.‖7

According to the facts at hand, Appellant 1 in his speech aimed at the upliftment of a
religious demographic by promising to allocate monetary resources to that sect, but did not in
any manner try to invoke feelings of enmity between different religions so as to be taken as a
violation of secular principles nor did the Appellant wrongfully induce voters to vote for him
in the sheer name of religion.

Justice DY Chandrachud, in his minority judgement, in the landmark case of Abhiram Singh
v. C.D. Commachen, brought up that voters, -
"may have and in reality do have a honest to goodness desire that the separation and
hardship which they may have endured in the past – and which many keep on suffering – on
the premise of their religion, caste, or language ought to be helped.”8
“Since access to administration is a method for tending to social inconsistencies, Social
mobilization is a powerful instrument of bringing marginalized groups into the mainstream.”9

Therefore, in the present case appeals made by Appellant 1 were solely for the purpose of
development of Mislamic community by promising to allocate money for it. The votes
secured by the candidate were on the basis of this promise and not on any appeal directed
towards religion. Herein, what was put forward by the candidate through his speech cannot be
construed as an attempt to garner a vote bank on the basis of religious similarity.

2.2 Why sectarian appeals should not be included under Corrupt Practices

In the case of Abhiram Singh v. C.D. Commachen, it was held by the Apex Court that
―Parliament is entitled to perceive, in the best interest of democratic political discourse and
bearing in mind the fundamental right to free speech and expression that what should be
proscribed should only be an appeal to the religion, race, caste, community or language of

7
Ramesh Y. Prabhoo v. Prabhakar K. Kunte, (1996) 1 SCC 130.
8
Abhiram Singh v. C.D commachen, (2017) 2 SCC 629.
9
Supra 8.

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the candidate or of a rival candidate, if the provision is construed to apply to the religion of
the voter, this would result in a situation where persons contesting an election would run the
risk of engaging in a corrupt practice if the discourse during the course of campaign dwells
on injustices suffered by a segment of the population on the basis of caste, race, community
or language. The Parliament did not intend it‘s amendment to lead to such a drastic
consequence. ”10

As stated in the aforementioned judgement, there is no warrant for making an assumption that
Parliament while enacting Section 123(3) intended to sanitize the electoral process from the
real histories of our people grounded in injustice, discrimination and suffering.11 If during the
course of campaigning, a candidate indulges in highlighting the injustice and bias prevalent in
the country towards a certain section of society on the basis of religion, caste, race,
community or language, he runs the risk of being charged under Section 123 of RPA, 1951.

It was held by the Supreme Court in the case of Kultar Singh v. Mukhtiar Singh, that
―Political issues which form the subject-matter of controversies at election meetings may
indirectly and incidentally introduce considerations of language or religion, but in deciding
the question as to whether corrupt practice has been committed under Section 123(3), care
must be taken to consider the impugned speech or appeal carefully and always in the light of
the relevant political controversy. We are, therefore, satisfied that the High Court was in
error in coming to the conclusion that the impugned poster attracted the provisions of Section
123(3) of the Act.‖12

Also, held in the case of Manmohan Kalia v. Yash and Ors. “An allegation of corrupt
practice must be proven as strictly as a criminal charge and the principle of preponderance
of probability will not be applied because if that test is applied, a very serious prejudice will
be caused to the election candidate who may be disqualified for a period of six years from
fighting any election, which will adversely affect the electoral process.”13

10
Ibid.
11
Abhiram Singh v. C.D. Commachen , (2017) 2 SCC 629.
12
Kultar Singh v. Mukhtiar Singh, (1964) 7 SCR 790 : AIR 1965 SC 141 : 26 ELR 300.
13
Manmohan Kalia v. Yash and Ors. (1984) 3 SCC 499.

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Herein, according to the facts at hand the aggrieved appellants are dealing with similar
circumstances. It was held in the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan
Ramdass Mehra that, “What is relevant in such cases 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.”14

Therefore, according to the facts at hand, the mere discussion of a religious community’s
development shall not be taken as a sectarian appeal amounting to a corrupt practice under
Section 123 of RPA, 1951. Whether religious appeal was made by a candidate or his
supporter at any meeting is not a question of merely providing a fact by adverse
presumption.15

A charge of corrupt practice is substantially akin to a criminal charge. The commission of

corrupt practice entails serious penal consequences, thus the trial of an election petition being
in the nature of an accusation, is the same as a criminal case. So in an election petition, the
person, against whom the charge of corrupt practice is leveled, is proved to be innocent
unless proved guilty.16

Therefore, in the present case, the appeals should be assessed by the Hon’ble Court in the
context of how it was addressed to the public and should not be dichotomized word by word.
A charge of corrupt practice cannot be established by a mere balance of probabilities.17 Thus
the Hon’ble Supreme Court should, in it’s discretion not allow appeals which on account of a
political discourse or otherwise merely pander over religion, caste, language etc. to be
included under Corrupt Practices as it would lead to grave injustice being suffered by the
candidates.

14
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors, (1976) 2 SCC 17.
15
S. Harcharan Singh v. S. Sajjan Singh, (1985) 1 SCC 370.
16
CH. Razik Ram v.CH Jaswant Singh Chouhan, (1975) 4 SCC 769.
17
Ibid.

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III. WHETHER AN ACT SAID AND DONE IN THE EXERCISE OF RIGHT TO

RELIGION AND FREEDOM OF SPEECH CAN BE BROUGHT UNDER CORRUPT
PRACTICES.

It is humbly submitted before this Hon’ble Supreme Court of Sindhusthan that decisions of
the respective High Courts should not be upheld as the religious symbols used by appellant 2
and the speeches made by the appellants 1 and 3 during the election campaign were in the
exercise of their Right to Religion and Freedom of speech, as guaranteed by the Constitution.
The same should not fall within the ambit of corrupt practices as defined under Section 123
(3) of the Representation of People’s Act, 1951 which reads herein under as:

“123. Corrupt practices: The following shall be deemed to be corrupt practices for this Act --
(3) The appeal by a candidate or his agent or by any other person with the consent of a
candidate or his election agent to vote or refrain from voting for any person on the ground of
his religion, race, caste, community or language or the use of, or appeal to religious symbols
or the use of, or appeal to, national symbols, such as the national flag or the national
emblem, for the furtherance of the prospects of the election of that candidate or for
prejudicially affecting the election of any candidate‖18

3.1 Whether an act said and done in the exercise of Right to Religion can be brought
under corrupt practices.

It is humbly submitted that The Constitution of India, 1950 guarantees the Right to Religion
to all its citizens in Part III which mentions about the Fundamental Rights. It forms the basic
structure of Constitution and allows the freedom to profess, propagate and practice one’s
religion under Articles 25- 28, Article 25 reads herein under as:

―Article 25. Freedom of conscience and free profession, practice and propagation of
religion.19

For the act to fall in the domain of corrupt practices, an appeal must be made to the voters on
the grounds of religion. The mere mention of the religious symbols or speeches should not be
charged under Section 123 (3) of the RPA Act.
18
The Representation of the People Act, 1951, No. 43, Acts of Parliament, 1951.
19
INDIA CONST. art. 25.

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Further, Non-discussion of caste or religion only reflects disregard of the social context
which is deeply hierarchical. A discussion on these aspects is a must and only a privileged
complacency can afford to dismiss such an important social discussion.20.

The Apex Court deliberated upon what could count as a religious symbol in the landmark
judgement of Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji. The court held that:

It is impossible to say that any particular object, bird, or animal could be regarded as a
―symbol of the Hindu religion‖. The basic concept of Hindu religion is that the supreme
being is in every ―inanimate‖ object, plant, creature or person i.e. in the entire creation and
that the entire creation is within the Supreme Being. If, therefore, according to the
fundamental concept of Hindu religion, God or Divinity is the reality or the substance of
everything that exists, it would not be possible to say that any particular object is a symbol of
the Hindu religion. 21

In the present case, Appellant 2 campaigned on the grounds of Mow animal protection. Even
though Mow is held sacred by the Sindhus, it would be quite preposterous to equate that as a
religious symbol. Following the rule laid in the aforementioned case, it is evident that there
wasn’t any use of religious symbol by the appellant which would make him liable for corrupt
practices.

Further, In the judgement of Jagdev Singh Sidhanti v. Pratap Singh Daulta, the court held that:
The expression ―Om‖ is respected by the Hindus generally and has a special significance the
Hindu scriptures. It is recited at the commencement of the recitations of Hindu religious
works but the attribute of spiritual significance will not necessarily impart to its use on a flag
the character of a religious symbol. To ―Om‖ high spiritual or mystical efficacy is
undoubtedly ascribed; but its use on a flag does not symbolise religion, or anything religious.
22

The use of Jam Temple as a ground for campaigning by the appellant 2 shouldn’t be regarded
as an appeal based on religion. Even though it has the attribute of spiritual significance but it

20
Amit Bindal, Notes and Comments: Religion, Governance and Corruption: An Analysis of the Judicial
Reasoning in the Election Judgement, 59 JILI (2017) 57.
21
Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji, (1965) 1 SCR 712.
22
Jagdev Singh Sidhanti v. Pratap Singh Daulta, AIR 1965 SC 183.

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shouldn’t be regarded as a religious symbol. Appellant 2 under his Right to Religion has the
right to freely profess and propagate his religion and so the bare mention of symbols which
maybe are held sacred by one community doesn’t necessarily make him liable for corrupt
practices.

In another landmark judgement of Murli Manohar Joshi v. Nitin Bhaurao Patil23 The
appellant had stated in his electoral appeal that "the first Hindu State will be established in
Maharashtra.”. The Apex Court decided in his favour stating:

―By resorting to the bizarre reasoning that such an exhortation does not amount to ―corrupt
practice‖ and though ―despicable‖, it can at best be described as a ―hope‖ and ―not appeal
for votes on the ground of his religion.‖

If the case of appellant 2 is read along the lines of the aforementioned cases, it clearly
enunciates that the High Court by usage of unreasonable reasoning had held appellant liable
for the spread of communal and corrupt practices. The appellant 2 in no sense had made an
appeal on the basis of religion and just campaigned on grounds of Mow Animal, Jam temple
and women safety. Had his intentions been that of spreading hatred and propagating enmity,
it would have been translated exactly to the public and he wouldn’t have won the elections in
a major Mislamic population constituency. Therefore, the appellant maintains that the case
against him for spreading communal hatred and corrupt practices holds no merit.

3.2 The campaign by the appellant 2 formed a part of Freedom of Speech and not Hate
speech

It is humbly submitted before the Hon'ble Supreme Court that the campaigning done by the
respective appellants were in the exercise of their Fundamental Right of Freedom of speech
and expression, which is mentioned under Article 19 (1) (a) of the Constitution of India, 1950
which reads under as:

―(1) All citizens shall have the right

(a) to freedom of speech and expression;‖24

23
Murli Manohar Joshi v. Nitin Bhaurao Patil, (1996) 1 SCC 169.
24
INDIA CONST. art. 19 cl 1.

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Freedom of speech is a prerequisite fundamental value for any popular democracy. People are
supposed to be rational and respectful towards the rights of others. The ability to do this can
be called political tolerance which is defined as the willingness to put up with those things
one rejects or opposes.25

It is humbly submitted that the appellant 2 challenges that the appeal of spreading communal
hatred amongst the community made by the respondent 2 and contests that it has no merit.
The speech given in the constituency of Luckpur was one along the lines of Freedom of
Speech and not made with the intention of fueling tensions between the communities. The
appellant 2 maintains that the same does not fall in the ambit of Hate speech.

Hate speech has not been defined under any statutory provision of the India, but the Supreme
Court dealt with this issue in the case of Pravasi Bhalai Sangathan v. Union of India by
citing Saskatchewan (Human Rights Commission) v. Whatcott.26

―The Supreme Court of Canada in Saskatchewan (Human Rights Commission) v. Whatcott,

succeeded in bringing out the ―human rights‖ obligations leading to control on publication
of ―hate speeches‖ for protection of human rights defining the expression ―hate speech‖
...Three main prescriptions must be followed. First, the courts must apply the hate speech
prohibition objectively. The question courts must ask is whether a reasonable person, aware
of the context and circumstances, would view the expression as exposing the protected group
to hatred.

“Second, the legislative term ―hatred‖ or ―hatred or contempt‖ must be interpreted as being
restricted to those extreme manifestations of the emotion described by the words
―detestation‖ and ―vilification‖. This filters out expression which, while repugnant and
offensive, does not incite the level of abhorrence, delegitimization, and rejection that risks
causing discrimination or other harmful effects‖27

25
Allison Harrell, Limits of Tolerance in Diverse Societies: Hate Speech and Political tolerance Norms Among
Youth, Canadian Journal of Political Science, Volume 43, No.2 Diversity and Democratic politics (June 2010)
pp.407-432.
26
Saskatchewan (Human Rights Commission) v. Whatcott [(2013) 1 SCR 467: 2013 SCC 11 (Can SC).
27
Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477.

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The first condition read along with the judgement of Hon’ble Supreme Court in Das Rao
Deshmukh (Dr) v. Kamal Kishore Nanasaheb Kadam28 wherein the court mentions the use of
hyperboles and exaggeration in election to be acceptable proves that the test of objectivity
must be followed. In the present matter, according to moot proposition line 1 of Plot 2, the
State of Northern Pradesh is known for caste politics and so when any appeal was made by
the candidate during the election campaign it would be considered with objectivity and
rationale, and not to be comprehended as an attempt to spread hatred among the communities.
Also, the second condition mentions that there has to be an extreme manifestation of the word
hatred, which clearly is missing in case of appellant 2.

―Third, the tribunals must focus their analysis on the effect of the expression at issue,
namely, whether it is likely to expose the targeted person or group to hatred by others. The
key is to determine the likely effect of the expression on its audience, keeping in mind the
legislative objectives to reduce or eliminate discrimination.‖29

The third condition to categorize an appeal as hate speech should be the analysis of the result
i.e. whether the exposed group was subjected to the hatred by others. As per moot proposition
line 3 of Plot 2, the state of Northern Pradesh is a town with major Mislamic population. If
the speech made by the appellant 2 was aggressive towards the same target group or
propagated hate in any sense, he wouldn’t have won elections by making religious appeals
against the Mislamic population. The simple fact that he won from that constituency is a
testimony that no religious sentiments were hurt of any section of society.

Furthermore, a PIL was filed by advocate M.L. Sharma in the Apex Court for seeking an
intervention by the court to direct the Election Commission to curb hate speech. The Supreme
court dismissed the plea and CJI R.M. Lodha said;

―We cannot curtail fundamental rights of people. It is a precious right guaranteed by

Constitution. We are a mature democracy; it is for the public to decide. We are 128 million

28
Das Rao Deshmukh (Dr) v. Kamal Kishore Nanasaheb Kadam (1995) 5 SCC 123.
29
Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477.

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people and there would be 128 million views. One is free not to accept the view of others‖.
The Court also said it is a matter of perception, and a statement objectionable to a person
might be normal to other person.‖30

In light of the aforementioned case laws, the appellant 2 maintains that his political discourse
was not violative of any statutory provisions of Sindhusthan and so his candidature was
wrongfully held void by the High Court of Northern Pradesh. The appellant humbly prays to
the Hon’ble Supreme Court to reverse the decision since his speech is protected under the
Right of Freedom of Speech and Right to Religion. Therefore, he shall not be held liable for
performing any corrupt practices and spreading communal hatred as defined under Section
123 (3) of the RPA Act, 1951.

30
Iqbal Ali Khan and Kalpana Rani Jayas, Hate Speech and Freedom of Speech: A Legal Scrutiny, 24 ALJ
(2016-17).

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IV. WHETHER AN APPEAL FROM A PERSON FROM MINORITY COMMUNITY

WILL AMOUNT TO CORRUPT PRACTICE IN THE LIGHT OF PROTECTIVE
DISCRIMINATION PRINCIPLE ENSHRINED UNDER THE CONSTITUTION OF
INDIA.

It is humbly submitted before the Hon’ble Supreme Court that the principle of protective
discrimination has been enshrined in the Constitution and institutionalized due to the
prevailing caste-based discrimination in Sindhusthan. The Constitution accords to the weaker
sections of society protective discrimination in various Articles.31 Constitution of India, 1950
has mention of Article 46 as a part of DPSP, which reads herein under as-

―46. Promotion of educational and economic interests of Scheduled Castes, Scheduled

Tribes and other weaker sections The State shall promote with special care the educational
and economic interests of the weaker sections of the people, and, in particular, of the
Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and
all forms of exploitation‖32

The need for Affirmative Action or Protective Discrimination is felt by a democracy when it
has certain sections of the society that need extra care and special provisions for upliftment,
in the aim of achieving social justice. Sindhusthan being a welfare state33 embodies the
principle that equals should be treated equally and unequal unequally.

The Apex Court in the landmark judgement of State of Kerala v. N.M. Thomas stated that:

―Men are actually born different. We, therefore, have to resort to some sort of proportionate
equality in many spheres to achieve justice. The principle of proportional equality is attained
only when equals are treated equally and unequals unequally. This would raise the baffling
question: Equals and unequals in what? The principle of proportional equality therefore
involves an appeal to some criterion in terms of which differential treatment is justified.‖34

31
Mohammad Ghouse, Judicial Control of Protective Discrimination, 11 JILI (1969) 371.
32
INDIA CONST. art 46.
33
INDIA CONST. art 38.
34
State of Kerala v. N.M. Thomas, (1976) 2 SCC 310.

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The aforementioned case justifies the differential treatment, so an ameliorative or

emancipatory use of caste, religious or linguistic identity, for instance, would strengthen the
democratic foundations and constitutional aspirations and the plural and syncretic ethos of the
Indian polity.35

According to moot proposition plot 3, Malit is a weaker section of the society which has been
subjected to injustice and prejudice at the hands of Grahmin who have oppressed them for a
long duration of time. Since there is a societal imbalance, the Malit community deserves to
get the preferential treatment with respect to the principle of Protective Discrimination
enshrined in the Constitution. Appellant 3 when addressed the public, called for
institutionalized reforms by providing adequate representation to her community in the civil
servants’ posts, rigorous law enforcement and stiff jail terms to protect the interest of her
community, all of which are in line with the principle of Protective Discrimination.

Further, Justice D Y Chandrachud in his dissenting opinion in the landmark judgment of

Abhiram Singh v. C.D. Commachen stated that:
―A dalit candidate‘s appeal against caste violence and soliciting of votes for the eradication
of caste discrimination, though based on ‗his‘ caste, should not be illegal, provided he can
establish that the discrimination he sought to combat is real and a concern which is genuine
and not merely to serve the prospects of winning the election. The court may either take
judicial notice or adduce evidence to discern whether at the time of appeal the discrimination
referred to, was real or fabricated to win elections and furthering communal or caste
propaganda.‖

36
In the judgement of Das Rao Deshmukh (Dr) v. Kamal Kishore Nanasaheb Kadam , the
Supreme Court held that:
―Election speeches appeals are made by candidates of opposing political parties often in an
atmosphere surcharged with partisan feelings and emotions. Use of hyperboles or
exaggerated language or adoption of metaphors and extravagance of expression in attacking
one party or a candidate are very common and court should conside0r the real thrust of the
speech without labouring to dissect one or two sentences of the speech, to decide whether the

35
Amit Bindal, Notes and Comments: Religion, Governance and Corruption: An Analysis of the Judicial
Reasoning in the Election Judgement, 59 JILI (2017) 57.
36
Das Rao Deshmukh (Dr) v. Kamal Kishore Nanasaheb Kadam (1995) 5 SCC 123.

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speech was really intended to generate improper passions on the score of religion, caste,
community etc.‖
According to the facts of the case, appellant 3 in her speech reflected upon the bigoted and
biased treatment meted out to the Malit community by the upper caste Grahmins. Since the
appellant was in a politically surcharged atmosphere, there was usage of extravagant
expressions while talking about the societal imbalance. Her speech when read in light with
the aforementioned case shouldn’t be dissected sentence by sentence, instead it should be
reviewed objectively to understand the real thrust, which was to speak out about the grave
injustice and atrocities suffered by the Malit community.

A paper on caste politics highlighted that, “As no single caste numerically preponderates in
any constituency this puts a severe constraint on any arithmetic calculation of electoral
results. There are simply not enough people from any caste to determine victory and defeat in
a straightforward way. This fact is always ignored by those who stress the importance of
caste to understand contemporary Indian politics.”37

In the present matter, the appellant 3 belonging to a weaker section of the society has the
right to represent and speak against the atrocities suffered by the Malit community. The fact
that she had already reigned as the Chief Minister of the State for three consecutive times and
was again elected to power is testimony to the fact that she didn’t strive solely on the support
of the Malits. No single caste numerically could have singlehandedly determined the victory
of a particular candidate, especially when she came back to power for the fourth time. Caste
is important in leadership but not in case of the voters and since there was no appeal made
which was violative of the principles of the Constitution of Sindhusthan, the appellant
humbly prays to the Hon’ble Supreme Court to reverse the decision taken by the High Court
of Chhatarpradesh and restore Status Quo.

37
Gupta, Dipankar &Yogesh Kumar, When the Caste Calculus Fails: Analysing BSP's Victory in UP, 42 ECON.
POLITICAL WKLY, 3388–3396 (2007).

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PRAYER

Wherefore in the light of issues raised, arguments advanced and authorities cited, It is most
humbly and respectfully prayed that the Hon’ble Court may be pleased to:

1. Reverse the judgements passed by the High courts and hold Appellants 1,2 and 3 not
liable for corrupt practices under Section 123of RPA, 1951.

2. Declare that Sectarian appeals and acts done in the exercise of one‘s right to religion
and freedom of speech are not to be brought under corrupt practices

3. Declare that an appeal from a person from minority community will not amount to
corrupt practices in the light of protective discrimination principle as enshrined
under the Constitution of India.

AND/OR

Pass any Order, Direction and Relief that this Hon’ble Court may deem fit in the Interest of
justice, equity and good conscience.

For this act of kindness, the Appellants, as in duty bound, shall humbly pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED BY

COUNSEL FOR THE APPELLANT

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