Seven Judge Constitutional Bench defining the limits of Section 123(3) RPA: Day 1 Updates

NOTE: The title of the post was edited subsequent to the SC rejecting a plea to reexamine the meaning of Hindutva as interpreted in the 1996 Manohar Joshi judgment

Today, a seven-judge Constitutional Bench of the Supreme Court of India comprising of Chief Justice T.S Thakur and Justices Madan B. Lokur, S.A Bobde, A.K Goel, U.U Lalit, D.Y Chandrachud and L.N Rao commenced hearing a batch of petitions to examine whether appeals in the name of religion for votes during elections amounts to “corrupt practice” under Section 123(3) of the Representation of People Act, 1951 (‘RPA’). The Court is relooking at the 1996 judgment where it was held that seeking votes in the name of “Hindutva” or “Hinduism” is not a corrupt practice and therefore, not in violation of RPA.

One of the appeals which has been tagged in the present case was filed by a political leader Mr. Abhiram Singh whose election to the legislative assembly in 1990 was set aside by the Bombay High Court in 1991 for violation of this provision.

Section 123(3) of RPA prohibits a candidate or his agent or any other person with the candidate’s consent to appeal for votes or refrain from voting on the grounds of his religion, race, caste, community or language. The issue before the Court was whether ‘his religion” mentioned in this provision referred only to the candidate’s religion or if it also includes the voters’ religion to be considered as a corrupt practice.

Mr. Arvind P. Datar, appearing on behalf of Mr. Abhiram Singh commenced his arguments by stating that for the purposes of Section 123(3) a reference to religion in a candidate’s electoral speech per se would not deem it a corrupt practice. It would amount to a corrupt practice only if such a candidate uses religion, race, caste, community or language as a leverage to garner votes either by appealing people to vote or refrain from voting on such basis. He further argued that “his religion” mentioned in Section 123(3) should be construed to mean only the candidate or the ‘rival’ candidate’s religion. It should not be read to include the voters’ religion.

In this context, the Chief Justice through an example tried to counter Mr. Datar’s submission of giving “his religion” a restrictive meaning. He put forth a hypothetical situation where a candidate belonging to religion ‘A’ appeals to people belonging to religion ‘B’ to vote for him or otherwise they would incur “divine displeasure”. In the instant case, though the candidate is not referring to his own religion but he is still appealing on the basis of religion i.e. religion of the voters. He further gave instances to draw a distinction between appealing on the basis of the candidate’s religion and religion per se.

To emphasize his point further, the Chief Justice put forth other scenarios where religious sentiments may be invoked directly or indirectly to seek votes by the candidate or any other person on his behalf. During the course of the hearing, Justice Bobde observed that “making an appeal in the name of religion is destructive of Section 123(3). If you make an appeal in the name of religion, then you are emphasizing the difference or you are emphasizing the identity. It is wrong.” The Court was inclined to give a broad interpretation to “his religion” to include within its ambit not only the candidate or the rival candidate’s religion but also the voters’ religion. .

The hearing post lunch was more focused on the merits of Mr. Abhiram Singh’s petition which devolved on the interpretation of Sections 98 and 99 of the RPA. Section 98 of the RPA provides for the decisions that a High Court may arrive at after the conclusion of the trial of an election petition. Section 99(1)(a)(ii) of the RPA further provides that in case of an allegation of any corrupt practice at an election, the high court shall name all persons who have been proved to be guilty of any corrupt practice, however, before naming any person who is not a party to the petition, the high court shall give an opportunity to such person to appear before it and also give an opportunity of cross-examining any witness who has already been examined.

In this backdrop, the following issues which were framed earlier by the three judge bench were considered by this Court:

  1. Whether the learned Judge who tried the case is required to record prima facie conclusions on proof of the corrupt practices committed by the returned candidate or his agents or collaborators (leaders of the political party under whose banner the returned candidate contested the election) or any other person on his behalf?
  2. Whether the consent of the returned candidate is required to be proved and if so, on what basis and under what circumstances the consent is held proved?
  3. On reaching the conclusion that consent is proved and prima facie corrupt practices are proved, whether the notice under Section 99(1) proviso (a) should contain, like mini judgment, extraction of pleadings of corrupt practices under Section 123, the evidence – oral and documentary and findings on each of the corrupt practices by each of the collaborators, if there are more than one, and supply them to all of them for giving an opportunity to be complied with?

The Court was of the opinion that the answer to the second issue is in the affirmative and the Court shall only consider the remaining two issues.

Mr. Datar argued that the election of Mr. Abhiram Singh was set aside by the Bombay High Court on the basis of the speeches made by Mr. Balasaheb Thackeray and Mr. Pramod Mahajan in which they made reference to ‘Hindutva’ to garner votes for the Shiv Sena and BJP candidates. His argument was that before coming to this conclusion, the Bombay High Court should have complied with the mandatory procedure provided in the proviso to Section 99(1)(a) which has been explained above.

The Court countered this submission by stating that the finding against Mr. Abhiram Singh stands independently irrespective of whether the process laid down in Section 99 has been followed by the Bombay High Court or not. The Court also observed that in case the High Court names certain individuals for indulging in corrupt practice without following this provision, then it is for such individuals to approach the High Court under Section 99. The Court further stated that the judgment against Mr. Abhiram Singh certainly cannot be vitiated due to such non-compliance. Mr. Datar continued to stress on his argument that the process under section 99 of the RPA must be followed by the High Court before any conclusion of a corrupt practice has been arrived at. He relied on the judgment passed in the earlier cases to buttress his submissions. Additional updates from Day I are available here.

The seven-judge bench will continue the hearing today. We will keep you posted regarding the further developments in this case.

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2 thoughts on “Seven Judge Constitutional Bench defining the limits of Section 123(3) RPA: Day 1 Updates

  1. Pingback: Seven Judge Constitutional Bench of the SC relooking at the Hindutva Judgment: Day 2 Updates | Centre for Communication Governance at National Law University, Delhi

  2. Pingback: The Hindutva Judgements and Electoral Malpractice: A Recap | Centre for Communication Governance at National Law University, Delhi

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