Seven Judge Constitutional Bench defining the limits of Section 123(3) RPA: Day 6 Updates (Judgment Reserved)

Mr. Salman Khurshid, appearing on behalf of one of the Respondents in the first appeal commenced his arguments on the issue surrounding the interpretation of Sections 98 and 99 of the RPA. On the nature of the trial under Section 98, Mr. Khurshid submitted that it was a hybrid trial i.e. it had both civil and criminal colors to it. Since, the provision deals with election petitions, the proceedings were civil in nature, however, owing to the serious consequences under it, the Courts have considered it to be a quasi-criminal trial.

Mr. Khurshid stated that the judgment under Section 98 as has been termed in Abhiram Singh vs. C.D. Commachen was a mini judgment. And, on the basis of that mini judgment, a mini trial is initiated under Section 99 as it involves ‘naming’ persons which has serious consequences.   Therefore, he referred to the concept of a trial within a trial in this context. The Chief Justice expressed serious reservations on the use of the words ‘mini judgment’ and ‘mini trial’. According to him there exists no such concept as a ‘mini judgment’ or a ‘mini trial’.

The moot question before the Court with reference to the interpretation of Section 98 and 99 was regarding the stage at which the Court could invoke its powers to issue notice to third parties who have committed a corrupt practice under the proviso to Section 99 but are not party to the main petition under Section 98.

There are two conflicting views in the regard. Firstly, after conclusion of the trial under Section 98, a notice under Section 99 can be sent to the third parties who have been alleged to have committed corrupt practices. Thereafter, a trial under Section 99 can then be conducted against the third parties. Secondly, if during the conduct of the trial under Section 98, third parties are found to have committed corrupt practices then a notice under Section 99 shall be issued to them. Thereby, a composite trial under Sections 98 and 99 shall be conducted against the returned candidate and the third party simultaneously.

Mr. Ashok Desai, Mr. Kapil Sibal and Mr. Khurshid all subscribed to the former view whereas Mr. Arvind P. Datar subscribed to the latter interpretation. In the opinion of Mr. Desai and Mr. Khurshid the latter interpretation would defeat the entire purpose of an expeditious trial under Section 86(7) of the RPA as issuing notices at every stage of the trial to every third party found involved in a corrupt practice would only delay the trial in the main petition. It would result in several trials within a trial.

Therefore, in light of the above discussion, the best approach according to Mr. Khurshid would be to separate the proceedings under Sections 98 and 99. An order under Section 98 should be deemed to be final and conclusive with respect to findings against the returned candidate in the main petition. And proceedings under Section 99 should be resorted to only for the purposes of naming third parties.

After considering the arguments on the given subject in great detail, the Court was of the opinion that an order under Section 98 that satisfies the requirements of both Sections 98 and 99 can be treated as a composite order even for the purposes of Section 99. If a trial under Section 98 was final then the judgment would record the nature of corrupt practice committed, proof of corrupt practice, parties involved in the corrupt practice and findings against the returned candidate. An order under Section 99 then will only be a repetition of the findings under Section 98 and would effectively be summing up the conclusions drawn in the order under Section 98. Therefore, in a situation where no third party is involved, an order under Section 98 would be a composite order for the purposes of Sections 98 and 99 with respect to the returned candidate.

At this stage, the Chief Justice sought Mr. Khurshid’s opinion where in a given situation if no notice is issued to a third party under Section 99, will such omission vitiate the entire trial and findings under Section 98 against the returned candidate. Mr. Khurshid answered in the negative to this proposition. According to him, the findings under Section 98 are final and conclusive with respect to the returned candidate and such cannot be vitiated on procedural grounds under Section 99.

Justice Chandrachud contemplated a situation under Section 98 where the findings of the Court are in favour of the returned candidate and liability for commission of a corrupt practice is attributed to a third party. If such findings are reported against a third party without making him a party to the proceedings, then such an exercise would be contrary to the principles of natural justice.

Mr. Khurshid’s final submission in this regard was that there should be a formal order under Section 99 which in turn should be in line with the findings and final order under Section 98.

Thereafter, Mr. Khurshid attempted to interpret Section 123(3) with respect to the concept of ‘consent’ appearing therein, however, the Court categorically refused to deal with ‘consent’ and deviate from the limited issues that have been referred to it.

Moving forward, Mr. Khurshid made references to the electoral laws prevailing in foreign jurisdictions like Australia, USA, UK, Mauritius and Mexico to draw a distinction with the prevailing Indian laws. According to him, most of the countries are plural countries but in some countries like Mexico there is a clear divide between the state and the church. However, no other country has express proscriptions prescribed in their electoral laws on the grounds of religion, race, caste, community or language. He proposed that the concept of secularism as interpreted in India is different from the meaning attributed to it in other countries. In the Indian context, secularism entails treating all religions equally and not separating between the state and religion.

On this issue of interpreting ‘his’ appearing in Section 123(3), Mr. Khurshid appealed that purposive interpretation should implemented and it should be given a wider interpretation. According to him, none of the sources of interpretation referred to including legislative debates, judgments etc. prescribe that ‘his’ should be restricted only to refer to a candidate. He emphasized that the objective behind the RPA was to fight communalism and separatist behavior. Therefore, the Court should in this larger context be mindful of the legislative intent and the situation prevailing in the country while interpreting Section 123(3). He submits that the provision should be so interpreted as to be ascribed a wider meaning as it were prior to the 1961 amendment. Hence, ‘his’ would include not only the candidate, his agent, election agent, any other person appealing on his behalf with this consent but also the voter.

To canvass his point further, Mr. Khurshid referred to the Lutfur Rahman case in the UK with respect to employing “undue spiritual influence” in the electoral process. Exerting “undue spiritual influence” on the voters in that case was held to be a corrupt and an illegal practice as a result Lutfur Rahman, the then mayor of Tower Hamlets was unseated from his official position.

Thereafter, Ms. Indira Jaising, appearing for one of the interveners in the matter began with her arguments. She proposed to address two propositions before the Court; firstly, interpretation of ‘his’ religion and in this context urged the Court to overrule two judgments and; secondly, when can it be said that a person has made an appeal on the grounds of religion.

Ms. Jaising urges the Court to read provision 123 as a whole i.e. Sections 123(2), 123(3), 123(3A) and 123(4) are interlinked as they share a common objective of maintaining the purity of elections and upholding the Constitutional values. Therefore, Sections 123(2) and 123(3A) should be used as an aid to interpret Section 123(3).

Ms. Jaising underlined the secular feature of the Constitution and in this context stated that it is the identity of the citizen that is sought to be preserved through elections and not an individual’s religious identity. Therefore, one ought not to misuse or abuse one’s religious identity with reference to Section 123(3). According to her, India is not a theocratic state and secularism in the Indian context is extending equal treatment to all religions. She stated that the state can have no religion and it practices neutrality. It is only the individuals that can practice their religion. She was of the further opinion that since the electoral process is a secular process it should be completely free from any references or influences on the basis of religion, race, caste, community or language.

Justice Chandrachud expressed serious reservations on the idea of completely divorcing religion from politics. He opined that is not possible to dissociate religion from politics when our entire Constitution is about coalescing of religion and politics. Therefore, according to him politics cannot be aloof of religion.

Ms. Jaising further submitted that a candidate cannot make a direct or indirect appeal on the grounds of religion either himself or through somebody else under the guise of protecting one’s own religion. She stated that during elections one can criticize a candidate’s political behavior, the states’ policies or as for the reversal of any discriminatory practices but one cannot refer to the prohibitory grounds mentioned in Section 123(3).

In this backdrop, Ms. Jaising requested the Court to draw and issue guidelines regarding appeals that are permissible and impermissible under Section 123(3). The Court, however, refused to enumerate a list of permissible and impermissible appeals as such list cannot be exhaustive and it would depend on the peculiar facts of each case. The Court stated that they would only make broad observations regarding the interpretation of ‘his’ to include within its ambit the candidate, his agent, election agent, any other person with his consent and even the voter.

Though Ms. Jaising referred to a few judgments and argued that they should be overruled but the Court refused to address it in light of the fact that such issue was not before it for consideration and it was open for Ms. Jaising to argue it before a five judge bench.

Ms. Jaising concluded her arguments by referring to the Ramesh Yeshwant Prabhoo case and stating that the observation of the Court that ‘Hindutva is a way of life’ is not the ratio of the judgment but was merely an obiter.

Then, Mr. Tushar Mehta, appearing for an intervener submitted two propositions before the Court. One, with respect to the interpretation of Sections 98 and 99, he submitted that instead of restricting the exercise of Section 99 only subsequent to the final order under Section 98, purposive interpretation should be employed and the proceedings under both the provisions should be conducted simultaneously. Second, Section 123(3) should be interpreted literally and ‘his’ should refer to only the candidate’s religion.

Mr. Sanjay R. Hegde, also appearing for an intervener placed his submissions before the Court. He appealed that ‘his’ appearing in Section 123(3) should be afforded a wider interpretation and should not be restricted only to mean the candidate.

Thereafter, Mr. Datar placed his rebuttal before Court. He reiterated that the Sections 98 and 99 do not contemplate separate trials but a composite trial. An order under both the sections have to be passed simultaneously. Mr. Datar vehemently argued that under Sections 98 and 99, there is no separate judgment qua the returned candidate and the third party. There is only one judgment with respect to both. According, to him one cannot divorce proceedings under Section 98 from that of Section 99 and for an order under Section 98 it is mandatory to follow the procedure under Section 99.

However, the Court at the end of Mr. Datar’s submissions observed that they were more inclined to hold that a notice under Section 99 qua a third party could be issued only after the final finding is recorded in the judgment under Section 98. The findings regarding the returned candidate would then be deemed final and such finding and trial could not be vitiated only on the procedural ground that a notice under Section 99 was not issued to the third party who had made the appeal.

Mr. Shyam Divan, in his rebuttal referred to constitution of the Shiromani Akali Dal present on the Election Commission’s website. The political principles of the party refer to safeguarding the interests of national minorities in general and Sikhs in particular. Mr. Divan contended that since the principles of the party is based on religion it is but natural that appeals will be made on such basis. Such principles of the party that are based on religion that appear on the Election Commission’s website is therefore allowed. Hence, ‘his’ should be interpreted to mean only the candidate and nobody else.

Mr. Divan’s final submissions were: firstly, no event or circumstance has arisen that calls for a departure from the long standing view with respect to the interpretation of Section 123(3); secondly, ‘his’ should mean the candidate or his opposing candidate only and nobody else and finally, Section 123(3) should be interpreted literally and not purposively.

With this, arguments of all concerned parties were concluded and the Court has reserved its judgment.

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One thought on “Seven Judge Constitutional Bench defining the limits of Section 123(3) RPA: Day 6 Updates (Judgment Reserved)

  1. Pingback: Electoral malpractices and "Hindutva" in the Supreme Court: Who argued what? [Updated] - Bar & Bench

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