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In a judgment (Abhiram Singh vs CD Commachen) which could have a significant impact on electoral politics, the Supreme Court of India has held by a razor-thin majority that Section 123(3) of the Representation of People Act, 1951 has to be given a broad and purposive interpretation.
Consequently, the word ‘his religion, race, caste, community or language’ appearing in section 123(3) would mean the religion, race caste or community of the candidate or the voter/ elector.
Electoral malpractices and “Hindutva” in the Supreme Court: Who argued what?
Justices Madan B Lokur and L Nageswara Rao delivered the majority opinion with Justice SA Bobde and Chief Justice TS Thakur delivering concurring but separate opinions.
Justices DY Chandrachud, AK Goel and UU Lalit delivered the dissenting judgment.
The genesis of the case lies in the 1990 Assembly elections to the Maharashtra State Legislative Assembly. The appellant Abhiram Singh, a candidate of the BJP, was elected from Santa Cruz constituency. The respondent, a candidate of the Congress party came in second. It led to an election petition alleging that the appellant had appealed for votes on the basis of Hindu religion. The election petition was allowed by the Bombay High Court in 1991.
Singh went to the Supreme Court in appeal.
The limited question that the Court considered in its judgment today was the interpretation of Section 123(3) of the Act.
The appellant’s submission was that the Section 123(3) should be given a literal interpretation. Senior Advocate Shyam Divan, who appeared for the appellant, submitted that the bar on making an appeal on the ground of religion must be confined to the religion of the candidate. He contended that the text of sub-section (3) of Section 123 of the Act cannot be stretched to include the religion of the elector or that of the agent or that of the person making the appeal with the consent of the candidate.
It was submitted that if a broad or purposive interpretation is given to sub-section (3) of Section 123 of the Act, then that sub-section might fall foul of Article 19(1)(a) of the Constitution.
Justices Madan Lokur and L Nageswara Rao
Justice Lokur, writing on behalf of himself and Justice Nageswara Rao traced the history of the provision and the various amendments it underwent in order to arrive at the legislative intent.
Based on the same, they turned down the submissions made by the appellant and held that interpreting the provision in a manner that assists candidates to an election rather than the elector or the electorate would be ‘going against public interest’.
“The Representation of the People Act, 1951 is a statute that enables us to cherish and strengthen our democratic ideals. ……The purpose of enacting sub-section (3) of Section 123 of the Act and amending it more than once during the course of the first 10 years of its enactment indicates the seriousness with which Parliament grappled with the necessity of curbing communalism, separatist and fissiparous tendencies during an election campaign..”
They, therefore, held that the provision should be given a purposive interpretation.
“There is no doubt in our mind that keeping in view the social context in which sub-section (3) of Section 123 of the Act was enacted and today’s social and technological context, it is absolutely necessary to give a purposive interpretation to the provision rather than a literal or strict interpretation as suggested by learned counsel for the appellants, which, as he suggested, should be limited only to the candidate’s religion or that of his rival candidates.”
They, thus, concluded the following:
Justice SA Bobde
Justice Bobde in his concurring judgment also concluded the following:
“Applying the above principles, there is no doubt that Parliament intended an appeal for votes on the ground of religion is not permissible whether the appeal is made on the ground of the religion of the candidate etc. or of the voter. Accordingly, the words “his religion” must be construed as referring to all the categories of persons preceding these words.”
Chief Justice TS Thakur
Chief Justice Thakur also delivered a separate but concurring judgment. He held that electoral process is a secular activity and religion can have no place in such an activity. Hence, the provision will have to be interpreted in a manner consistent with that.
“…an interpretation that will have the effect of removing the religion or religious considerations from the secular character of the State or state activity ought to be preferred over an interpretation which may allow such considerations to enter, effect or influence such activities.”
He, therefore, held that an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made. This would be regardless of whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voter’s.
“The sum total of Section 123 (3) even after amendment is that an appeal in the name of religion, race, caste, community or language is forbidden even when the appeal may not be in the name of the religion, race, caste, community or language of the candidate for whom it has been made. So interpreted religion, race, caste, community or language would not be allowed to play any role in the electoral process and should an appeal be made on any of those considerations, the same would constitute a corrupt practice.”
The dissenting judgment was authored by Justice DY Chandrachud on behalf of himself and Justices UU Lalit and AK Goel.
The dissenting judges held that the intention of the Parliament was to restrict appeal for votes on the basis of religion, caste etc. of the 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 a campaign dwells on injustices suffered by a segment of the population on the basis of caste, race, community or language. Parliament did not intend its amendment to lead to such a drastic consequence.”
They held that though the Indian State is secular in character, the Constitution is not indifferent to issues of religion, caste or language.
“The Constitution is not oblivious to the history of discrimination against and the deprivation inflicted upon large segments of the population based on religion, caste and language. Religion, caste and language are as much a symbol of social discrimination imposed on large segments of our society on the basis of immutable characteristics as they are of a social mobilisation to answer centuries of injustice. They are part of the central theme of the Constitution to produce a just social order.”
Hence, candidates might have to speak about genuine, legitimate concerns of citizens on the basis of religion, caste language etc and holding them guilty of electoral malpractice for the same will hit at the idea of democracy.
“To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction.
The dissenting judges, therefore, held that the statute does not prohibit discussion, debate or dialogue during the course of an election campaign on issues pertaining to religion or on issues of caste, community, race or language.
“Discussion of matters relating to religion, caste, race, community or language which are of concern to the voters is not an appeal on those grounds. Caste, race, religion and language are matters of constitutional importance. The Constitution deals with them and contains provisions for the amelioration of disabilities and discrimination which was practiced on the basis of those features.”
Based on the above, they concluded that ‘his’ in Section 123(3) does not refer to the religion, race, caste, community or language of the voter. Instead, ‘his’ is to be read as referring to the religion, race, caste, community or language of the candidate in whose favour a vote is sought or that of another candidate against whom there is an appeal to refrain from voting.
Read the judgment below.