Supreme Court’s National Anthem Order: Forced Patriotism vs. Freedom of Expression

By Kasturika Kaumudi

This post discusses the Supreme Court’s order mandating playing of the national anthem in all movie theatres and the incongruities that emerge from it vis-à-vis freedom of expression. The post seeks to highlight the fundamental problem of making patriotism a forced expression.

In a widely criticized move, a Supreme Court bench ruled that it is mandatory for movie theaters to play the national anthem before the screening of every movie. The Court also cast upon all cinema goers the obligation to stand up during the national anthem in a cinema hall.

The purpose for the measure as cited by the Court was to ‘instill the feeling of committed patriotism and nationalism within one’. It is, however, difficult to understand how playing the national anthem, particularly at cinemas, which are essentially a recreational avenue, will guarantee patriotic feelings.

Patriotism and Freedom of Expression:

Patriotism is a very personal sentiment and an individual’s right to express it in her own way is ingrained in the constitutional right to freedom of expression. To fortify this argument a parallel can be drawn to the reasoning adopted by the Supreme Court in its 1986 ruling in Bijoe Emmanuel vs. State of Kerala. Here, the Apex Court had extended protection to children belonging to the Jehovah’s Witness sect, who had refused to sing the national anthem during a school assembly. The Court, while upholding the children’s right to freedom of speech and expression and right to religion categorically held, “..There is no provision of law which obliges anyone to sing the National Anthem…”

Similarly, the US Supreme Court in the landmark case of West Virginia State Board of Education vs. Barnette, held illegal a resolution that allowed schools to expel its students who refused to salute the flag and undertake the Pledge of Allegiance. The US Supreme Court held that forcing students to salute and recite the Pledge constituted compelled speech and violated the right to free speech and expression guaranteed under the First Amendment. The majority decision given by Justice Robert Jackson held,

“If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. …We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

The tenor of the order of the Indian Supreme Court implies forced patriotism, while such mandated displays of patriotism go against the very grain of freedom of expression. The Court in Excel Wear Etc. vs. Union of India held that the fundamental right under Article 19 has reciprocal rights i.e. the “right to freedom of speech includes the right not to speak and the right not to form an association is inherent in the right to form associations”. Correspondingly, the right to expression under Article 19 should also encompass within it a right not to express. The expression of patriotism should be left to an individual’s personal choice and ought not to be dictated through a decree or any other means like a government order or law. Furthermore, in this context, it is extremely pertinent to highlight Justice Jackson’s Barnette opinion on making ‘patriotic ceremonies’ a ‘compulsory routine’. He emphasizes that patriotic ceremonies should be voluntary and spontaneous instead of being a compulsory routine. To do so would be underestimating the institutions of free minds.

Constitutional Patriotism – a reasonable restriction under Article 19(2)?

In the present order, the Court seems to have sacrificed ‘individual rights’ at the altar of ‘constitutional patriotism’ when it held, “It does not allow any different notion or the perception of individual rights that have individually thought of have no space. The idea is constitutionally impermissible.” While curtailing individual rights, the Court has used terms like ‘constitutional patriotism’, ‘nationalism’ and ‘patriotism’ liberally throughout the order without enunciating the variance in their import.

It has been argued that free speech and expression can be curtailed under Article 19(2) only by an existing law or a law made by the State and no other mechanism. In the absence of any law or constitutional provision to justify its actions, the Court has resorted to ‘constitutional patriotism’ as a justification to encroach upon the freedom of speech and expression of people.

‘Constitutional Patriotism’ is a concept borrowed from German jurisprudence. It denotes allegiance to constitutional principles as a means of fostering social cohesion and dwells on developing a common identity for all citizens over their individual religion, culture, tradition etc. According to this concept, constitutional principles should serve as the binding factor and nothing else. In this context, the Court’s rationale behind making it mandatory to play the national anthem as a means to ‘instil patriotism and nationalism’ is off the mark as the national anthem, if anything, is symbolic of the nation and not of the constitution.

In Bijoe Emmanuel, the Court clearly laid down that any regulation or curtailment of free speech and expression should have statutory backing and fall under the reasonable restrictions prescribed under Article 19(2). There can be no other basis for incursion into the ambit of fundamental rights. The Court’s recourse to ‘constitutional patriotism’, an extra constitutional principle, to restrict fundamental rights without any constitutional or statutory basis, sets a very dangerous precedent.

Deeming Fundamental Duties Enforceable

The Court has taken refuge of Article 51A of the Indian Constitution to direct individuals to compulsorily stand up during the national anthem as a ‘sacred obligation’. Article 51A(a) of the Constitution only casts a duty on the citizens to ‘abide by the Constitution and respect its ideals and institutions, the national flag and the national anthem’ and does not prescribe specific standards such as being required to sing and/or stand to show respect. The Court has failed to note that though there is an inherent compulsion to comply with the fundamental duties, there is no legal sanction provided for the violation or non-performance of such duties.

Moreover, the Prevention of Insults to National Honour Act, 1971 (‘Act’) which has been referred to in the order does not mandate that a person must necessarily sing and/or stand during the national anthem. Section 3 of the Act merely criminalizes any act done intentionally to prevent the singing of, or causing disturbance during, the national anthem. By issuing the present order, the Court has effectively deemed this fundamental duty enforceable, non-compliance of which may attract contempt of Court proceedings. Furthermore, in the absence of any law prescribing punishment for not standing and/or singing the national anthem, the present order is a clear case of encroachment into the legislative domain.

As a fallout of the Supreme Court order, the Kerala police had arrested eleven people for showing disrespect to the national anthem by not standing up at an international film festival held in Thiruvananthapuram. Though the ‘accused’ were released on personal bail, they have been charged under Section 188 of the Indian Penal Code, which prescribes punishments for disobeying an order passed by a public servant.

Conclusion:

This order could spell disastrous consequences by giving teeth to self-appointed vigilantes looking to uphold the nation’s honour. There have already been several instances of such jingoism in the recent past which cause serious apprehensions regarding the enforcement and outcome of the Court order. Most recently, a paraplegic man was assaulted in a theatre in Goa for not standing up during the national anthem and a group of college students were manhandled and threatened for not standing up during the national anthem at a theatre in Chennai.

Curiously, on 2^nd December, 2016 a similar plea to make the playing of the national anthem mandatory in all Courts was rejected by the Supreme Court calling it an ‘overstretch’. Considering the interim order has been severely criticized, it will be interesting to trace the course that the matter takes on the next date of hearing which is 14^th February, 2017.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

Intermediary Liability Again: Google India. vs. Visaka Industries

By Kasturika Kaumudi

A Brief Background

In 2009, a defamation case was filed by Visaka Industries Ltd. (the ‘Company’) against a group called Ban Asbestos Network India (‘BANI’), its coordinator Mr. Gopal Krishna and Google India. The Company is involved in the manufacturing and selling of asbestos cement sheets and allied products. The Company had alleged that some of the blogposts written by Mr. Gopal Krishna which were posted on the blog owned by BANI were defamatory in nature. The blogposts contained scathing criticism of the Company for allegedly enjoying political patronage and making profits from products manufactured from asbestos. The Company has also arraigned Google India as a party since the blog was hosted on the blog-publishing service of Google called Blogger.

In its petition before the metropolitan magistrate, the Company accused that Google India is guilty of the following offences under the Indian Penal Code, 1860 (‘IPC’): (i) criminal conspiracy (Section 120-B IPC), defamation (Section 500 IPC) and publishing defamatory content (Section 501 read with Section 34 IPC). It was further alleged that Google India failed to remove the alleged defamatory content despite being brought to its notice.

While the case was pending before the metropolitan magistrate, Google India approached the Andhra Pradesh High Court (‘High Court’) under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of all the criminal charges levelled against it. Google India contented that it cannot be held liable for criminal defamation under IPC as it is not the publisher of the alleged defamatory content. Google India or Google Inc. are only intermediaries and service providers that act as a platform for end users to upload their content. Consequently, intermediaries like Google India or Google Inc. cannot be held liable in view of Section 79 of the Information Technology Act, 2000 (‘IT Act’) for defamation since they are neither authors nor publishers of such content.

The High Court, however, dismissed Google India’s petition through its order dated April 19, 2014. The High Court while referring to Section 79(3)(b) of the IT Act held that Google India failed to take any action either to block or stop such dissemination of objectionable material despite the Company issuing a notice and bringing the defamatory material to the knowledge of Google India. Therefore, the High Court refused to grant exemptions available to intermediaries under the IT Act to Google India either under the un-amended or the amended Section 79 of the IT Act which amendment took effect from October 27, 2009. The High Court further refused to drop the defamation charges against Google India.

Being aggrieved by the order of the High Court, Google India filed an appeal before the Supreme Court of India in 2011. Since then, the matter has been adjourned on several instances and was recently heard by a SC bench. The latest date of hearing being on November 24, 2016.

Hearing on November 24, 2016

The hearing commenced with Mr. Tushar Mehta, Additional Solicitor General of India appearing for the Union of India mentioning the matter before a two-judge bench of the Supreme Court comprising of Justice Dipak Mishra and Justice Amitava Roy. Mr. Mehta mentioned that on the last date of hearing i.e., November 10, 2016, the Court had passed an order seeking the Attorney General’s assistance in the matter. However, since the Attorney General had a conflict of interest in the matter having appeared for one of the parties previously, Mr. Mehta stated that he would be appearing on behalf of the Attorney General.

Mr. C.A. Sundaram, Senior Advocate appearing on behalf of Google India commenced his arguments by highlighting the following issues which he sought to address before the Court:

1. What is the scope and extent of Section 79 of the IT Act vis-à-vis defamation cases?
2. Is an intermediary a publisher for the purposes of Section 499 of IPC?
3. At what stage should an intermediary remove content hosted by it? Should it remove the content pursuant to only a request made by a third party or should it take down content pursuant to an executive order or a court order?

Justice Dipak Mishra while recapitulating the previous hearings stated that the Court was of the view that an intermediary can be said to have knowledge of the objectionable content through an order passed by a court or through a government notification. Keeping the above opinion in mind, Justice Mishra reckoned that Google India should not be liable in the present case since it had not received knowledge of the objectionable material since neither a court order nor a government notification was passed in regard to the same.

Mr. Sundaram further contended that the knowledge of an intermediary should be considered only in case of receipt of an order passed by a court of law and not in case of an executive order. Justice Mishra expressed his reservations regarding this contention. To advance his argument, Mr. Sundaram referred to Section 69A of the IT Act which confers powers on the Central Government to issue directions to any Government agency or intermediary to block any information for public access through any computer resource. As per the provision, the Central Government can do so on the grounds that “it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above”. Mr. Sundaram tried to draw a distinction between the grounds as mentioned in Section 69A and Article 19(2) of the Constitution of India which specifically provides for ‘defamation’ as a reasonable restriction to freedom of speech and expression. He contended that the executive does not have the power to issue orders for blocking of content under Section 69A of the IT Act on the ground of defamation.

He further argued that before issuing an order for blocking of content on the ground that such material is defamatory in nature, it is necessary to prove the same. According to him, such determination can only be made by a court of law. Hence, he argued that knowledge should be attributed to an intermediary only on the receipt of a judicial/court order and not a government notification or executive order.

After hearing Mr. Sundaram’s submissions on this point, Justice Mishra opined that there seems to be some substance in his contention. Justice Mishra inquired from Mr. K.V. Vishwanathan, Senior Advocate appearing for the Company whether the government can decide if the content is defamatory or not.

Mr. Vishwanathan submitted that the aspects of blocking, taking down of content and fixing liability of the intermediaries have different connotations. He further countered the argument previously made by Mr. Sundaram that Google Inc. and Google India are two separate entities. He referred to the definition of ‘intermediary’ as contained in Section 2(1)(w) of the IT Act which includes ‘search engines’. Hence, he contended that there should be no difference in treatment of Google Inc. and Google India for the purpose of the present case.

On the issue whether an intermediary can be treated as a publisher of the content, Mr Sundaram argued that an intermediary cannot be held to be a publisher of the content. However, if such intermediary fails to take any action despite having knowledge of such content through a takedown order, then it can be held to be the publisher of such content.

Mr. Vishwanathan contended that it is an internationally accepted position that an intermediary can be held to be liable as a publisher of defamatory material if it had the knowledge of such material.

Mr. Tushar Mehta as a concluding remark stated that free speech is an absolute right with reasonable restrictions contained under Article 19(2). However, situations such as the present case merit judicial intervention to decide the contours of free speech.

The next date of hearing has been fixed for January 19, 2017.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

NDTV India Ban: A Case of Regulatory Overreach and Insidious Censorship?

By Kasturika Kaumudi 

In a highly contentious move, the Ministry of Information and Broadcasting (‘MIB’) issued an order banning the telecast of the Hindi news channel ‘NDTV India’ on 9^th November, 2016. The MIB imposed this ‘token penalty’ on NDTV India following the recommendation of an Inter-Ministerial Committee (‘IMC’). The IMC had found the channel liable for revealing “strategically sensitive information” during the coverage of Pathankot terrorist attacks on 4^th January, 2016. The ban has, however, been put on hold by the MIB after the Supreme Court agreed to hear a writ petition filed by NDTV India against the ban.

The order passed by the MIB raises some important legal issues regarding the freedom of speech and expression of the press. Since the news channels are constantly in the race for garnering Television Rating Points, they may sometimes overlook the letter of the law while covering sensitive incidents such as terrorist attacks. In such cases, regulation of the media becomes necessary. However, it is tricky to achieve an optimum balance between the various concerns at play here – the freedom of expression of the press and the people’s right to information, public interest and national security.

In this post, we discuss the background of the NDTV India case and the legal issues arising from it. We also analyze and highlight the effects of governmental regulation of the media and its impact on the freedom of speech and expression of the media.

NDTV Case – A Brief Background:

On January 29, 2016, the MIB had issued a show cause notice to NDTV India alleging that their coverage of the Pathankot military airbase attack had revealed vital information which could be used by terror operators to impede the counter-operations carried by the security forces. The notice also provided details regarding the alleged sensitive information revealed by NDTV India.

In its defence, the channel claimed that the coverage had been “balanced and responsible” and that it was committed to the highest levels of journalism. The channel also stated that the sensitive information allegedly revealed by the channel regarding critical defence assets and location of the terrorists was already available in the public domain at the time of reporting. It was also pointed out that other news channels which had reported on similar information had not been hauled up by the MIB.

However, the MIB, in its order dated January 2, 2016, held that NDTV India’s coverage contravened Rule 6(1)(p) of the Programme and Advertising Code (the ‘Programme Code’ or ‘Code’) issued under the Cable TV Network Rules, 1994 (‘Cable TV Rules’). In exercise of its powers under the Cable TV Networks (Regulation) Act, 1995 (‘Cable TV Act’) and the Guidelines for Uplinking of Television Channels from India, 2011, the MIB imposed a ‘token penalty’ of a day’s ban on the broadcast of the channel.

Rule 6(1)(p) of the Programme Code:

Rule 6 of the Code sets out the restrictions on the content of programmes and advertisements that can be broadcasted on cable TV. Rule 6(1)(p) and (q) were added recently. Rule 6(1)(p) was introduced after concerns were expressed regarding the real-time coverage of sensitive incidents like the Mumbai and Gurdaspur terror attacks by Indian media. It seeks to prevent disclosure of sensitive information during such live coverage that could act as possible information sources for terror operators.

Rule 6(1)(p) states that: “No programme should be carried in the cable service which contains live coverage of any anti-terrorist operation by security forces, wherein media coverage shall be restricted to periodic briefing by an officer designated by the appropriate Government, till such operation concludes.

Explanation: For the purposes of this clause, it is clarified that “anti-terrorist operation” means such operation undertaken to bring terrorists to justice, which includes all engagements involving justifiable use of force between security forces and terrorists.”

Rule 6(1)(p), though necessary to regulate overzealous media coverage especially during incidents like terrorist attacks, is vague and ambiguous in its phrasing. The term ‘live coverage’ has not been defined in the Cable TV Rules, which makes it difficult to assess its precise meaning and scope. It is unclear whether ‘live coverage’ means only live video feed of the operations or whether live updates through media reporting without visuals will also be considered ‘live coverage’.

Further, the explanation to Rule 6(1)(p) also leaves a lot of room for subjective interpretation. It is unclear whether the expression “to bring terrorists to justice” implies the counter operations should result in fatalities of the terrorists or if the intention is to include the coverage of the trial and conviction of the terrorists, if they were caught alive. If so, it would be highly impractical to bar such coverage under Rule 6(1)(p). The inherent vagueness of this provision gives wide discretion to the governmental authorities to decide whether channels have violated the provisions of the Code.

In this context, it is important to highlight that the Supreme Court had struck down Section 66A of the Information and Technology Act, 2000 in the case of Shreya Singhal vs. Union of India, on the ground of being vague and overboard. The Court had held that the vague and imprecise nature of the provision had a chilling effect on the freedom of speech and expression. Following from this, it will be interesting to see the stand of the Supreme Court when it tests the constitutionality of Rule 6(1)(p) in light of the strict standards laid down in Shreya Singhal and a spate of other judgments.

Freedom of Speech under Article 19(1)(a)

The right of the media to report news is rooted in the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. Every right has a corresponding duty, and accordingly, the right of the media to report news is accompanied by a duty to function responsibly while reporting information in the interest of the public. The freedom of the media is not absolute or unbridled, and reasonable restrictions can be placed on it under Article 19(2).

In the present case, it can be argued that Rule 6(1)(p) fails to pass the scrutiny of Article 19(2) due to inherent vagueness in the text of the provision. However, the Supreme Court may be reluctant to deem the provision unconstitutional. This reluctance was demonstrated for instance, when the challenge to the constitutionality of the Cinematograph Act, 1952 and its attendant guidelines, for containing vague restrictions in the context of certifying films, was dismissed by the Supreme Court. The Censor Board has used the wide discretion available to it for placing unreasonable restrictions while certifying films. If the Supreme Court continues to allow such restrictions on the freedom of speech and expression, the Programme Code is likely to survive judicial scrutiny.

Who should regulate?

Another important issue that the Supreme Court should decide in the present case is whether the MIB had the power to impose such a ban on NDTV India. Under the current regulatory regime, there are no statutory bodies governing media infractions. However, there are self-regulatory bodies like the News Broadcast Standards Authority (NBSA) and the Broadcasting Content Complaint’s Council (BCCC).The NBSA is an independent body set up by the News Broadcasters Association for regulating news and current affairs channels. The BCCC is a complaint redressal system established by the Indian Broadcasting Foundation for the non-news sector and is headed by retired judges of the Supreme Court and High Courts. Both the NBSA and the BCCC regularly look into complaints regarding violations of the Programme Code. These bodies are also authorized to issue advisories, condemn, levy penalties and direct channels to be taken off air if found in contravention of the Programme Code.

The decision of the MIB was predicated on the recommendation made by IMC which comprises solely of government officials with no journalistic or legal background. The MIB should have considered referring the matter to a regulatory body with domain expertise like the NBSA that addresses such matters on a regular basis or at least should have sought their opinion before arriving at its decision.

Way Forward

Freedom of expression of the press and the impartial and fair scrutiny of government actions and policies is imperative for a healthy democracy. Carte blanche powers with the government to regulate the media as stipulated by Cable TV Act without judicial or other oversight mechanisms pose a serious threat to free speech and the independence of the fourth estate.

The imposition of the ban against NDTV India by the MIB under vague and uncertain provisions can be argued as a case of regulatory overreach and insidious censorship. The perils of such executive intrusion on the freedom of the media will have a chilling effect on the freedom of speech. This can impact the vibrancy of the public discourse and the free flow of information and ideas which sustains a democracy. Although the governmental decision has been stayed, the Supreme Court should intervene and clarify the import of the vague terms used in the Programme Code to ensure that the freedom of the press is not compromised and fair and impartial news reporting is not stifled under the threat of executive action.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

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

By Kasturika Kaumudi 

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.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

Seven Judge Constitutional Bench defining the limits of Section 123(3) RPA: Day 5 Updates

By Kasturika Kaumudi 

Mr. Desai resumed his arguments from the previous day on the interplay of Sections 98 and 99 of the RPA. His submission has been that proceedings under Sections 98 and 99 are two independent and separate proceedings. According to him, proceedings under Sections 98 and 99 are civil in nature and are not criminal or quasi-criminal. He stated that Section 98 was mainly concerned with the determination of the validity of a candidate’s election and Section 99 is an exercise of the sovereign authority of the High Court to maintain the purity of elections.

Mr. Desai stated that all the previous judgments dealing with Sections 98 and 99 had a common thread i.e. Sections 98 and 99 are separate proceedings. The only exception to this was the 1996 Manohar Joshi judgment which deviated from the settled position and interlinked proceedings under Sections 98 and 99. To buttress his argument he referred to the case of Manohar Joshi Etc vs Damodar Tatyaba, wherein only Section 99 has been referred to and dealt with. It was his argument that since Section 99 was considered as a separate proceeding it has been dealt with on a standalone basis with no reference to Section 98. He submitted that the order under Section 98 is a final order regarding the finding of corrupt practice against a candidate. During the proceedings under Section 98, it is open for the candidate to call upon any person as his witness including the person who made the appeal. If the candidate chooses not to call upon the person who made the appeal and examine him, then he will have to suffer the consequences thereof.

While examining this issue, the Chief Justice considered a situation where an agent of a returned candidate who made an appeal on behalf of the returned candidate was found guilty of a corrupt practice and the returned candidate was also held vicariously liable of corrupt practice. In such a case, if the agent is named in the final order without a notice, can the judgment setting aside the election of the returned candidate stand to be vitiated on this procedural ground? The Chief Justice was inclined to answer in the negative. Mr. Desai agreeing with the Chief Justice’s observations stated that the trial with respect to the returned candidate was final and cannot be undone on such procedural grounds.

Mr. Kapil Sibal, appearing in the second appeal, opened his arguments by stating that like the Basic Structure there is an ‘enduring Constitutional ethos’ that runs deep in the electoral process. When elections are announced, the government in power is only a caretaker government. Therefore, during the interregnum, when elections are announced and the government comes into power, the responsibility of safeguarding the ‘enduring Constitutional ethos’ is vested with the Election Commission.

Mr. Sibal emphasized that the target of the election is the voter and the purpose of the RPA is to prohibit the arousal of communal sentiments or feelings in the voter. Therefore, politicians should refrain from referring to religion, race, caste, community or language in their political discourse. If such practice is not discontinued then it is for the Court to ensure that such political discourses are not inconsistent with the ‘enduring Constitutional ethos’. In this backdrop, he beseeched the Court to give Section 123(3) a wider interpretation.

Mr. Sibal referred to Articles 5, 6, 7, 15, 16, 17, 25, 26, 28, 29, 30, 46, 51A etc. of the Constitution of India to demonstrate that these Articles formed the core values of the ‘enduring Constitutional ethos’ and Section 123(3) should be interpreted keeping these core values in mind. Therefore, in his submission no political discourse violating these core values is permissible.

Further, he referred to the pre-amended Section 123(3) and stated that the concept of ‘his’ though not expressly stated was implicit in the section and could be read into ‘appeal by a candidate’.

In this context, the Chief Justice reiterated that Section 123(3) was amended and the word ‘systematic’ was removed to widen the scope of the provision on one hand. On the other hand, inclusion of the word ‘his’ was with a view to identify the person making an appeal. Therefore, the moot question is who then can be included within the meaning of ‘his’.

While reading the pre-amended Section 123(3), Justice Lokur wanted to know when was ‘consent’ was incorporated in Section 123(3) as the word ‘consent’ did not form part of the original provision.

In answer to Justice Lokur’s query, Mr. Sibal traced the genesis of Section 123(3) and referred to the amendments pertaining to the section. The 1^st Amendment took place in 1956 when Section 124(5) was incorporated in Section 123(3). The original provision did not contain the words ‘consent’ or ‘his’. The 2^nd Amendment took place in 1958 and ‘with the consent’ was introduced in the section. Thereafter, the 3^rd Amendment in 1961 gave the provision its present form.

In this context, the Chief Justice deliberated that the 1961 Amendment was meant to widen the scope of corrupt practice by removing ‘systematic’ and including ‘language’ in the provision. But, according to Mr. Divan’s submission while that gave the provision a wider meaning, inclusion of the word ‘his’ was to denote a restrictive meaning to the identity of the person making an appeal.

Mr. Sibal submitted that if Mr. Divan’s argument was to be accepted then the entire purpose of the amendment will stand defeated. He urged the Court not to interpret the provision in a way that is inconsistent with the core values of the ‘enduring Constitutional ethos’ and ensure that the composite culture that is sought to be protected zealously by the Constitution is not impaired.

Mr. Sibal in his arguments laid a great deal of importance on the inclusion of the voter within the meaning of ‘his’. According to him, ‘his’ would include both the person making an appeal and the person to whom such an appeal is being made i.e. the voter as the voter is at the heart of the appeal. He submitted that the appeal need not impute a direct reference to the candidate or opposing candidate or the voter. A speech by a candidate shrouded in colorful language with indirect references to the opposing candidate or the voter is a direct appeal for all practical purposes.

Justice Lalit posed a question that if there is an identifiable community that feels ignored or threatened and an appeal by a candidate is made assuring protection to such community on being elected. Then would such an appeal which has no reference to the religion, race, caste, community or language of the candidate or the voter community fall within the purview of Section 123(3).

Mr. Sibal responded by stating that such appeal has to be measured in reference to Articles 28 and 29 of the Constitution. If it is consistent with Articles 28 and 29 then such an appeal is permissible but not otherwise. He stated that the issue is seminal and ascribing a restrictive meaning to the provision will open floodgates of mayhem.

There was extensive debate on the scope and ambit of the word ‘his’ with no decisive conclusion being arrived at. Therefore, the Court suggested that since no clear lines can be drawn while interpreting Section 123(3), one plausible option would be for the Court to limit the scope to mean the candidate’s religion. Mr. Sibal retorted that if such a limited interpretation were to be extended to the provision then it would result in a situation which will be safe for the candidate but unsafe for the nation.

Delving further into this issue, Justice Lalit observed that if there is an appeal simpliciter on the basis of religion, race etc. identifying the religion of the candidate or the voter who might belong to the candidate’s religion, then such an appeal will fall within the ambit of Section 123(3). However, the difficulty lies in deciding whether a situation where an appeal is made with indirect or passing references to the prohibited grounds would be hit by Section 123(3).

Ms. Indira Jaising, appearing in the matter responded by suggesting that the Court should in such a situation draw up guidelines to cover the grey areas.

Mr. Sibal urged the Court to give the provision a purposive interpretation instead of a restrictive one. In this context, he submitted that the provision should be interpreted taking note of the purpose behind such provision i.e. mischief that it seeks to remedy. In this case, the mischief that is sought to be remedied is making an appeal on the basis of religion, race, caste, community or language. At this juncture, Justice Bobde opined that a strict interpretation of the provision does not necessarily mean an interpretation dehors the purpose of the provision.

On the subject of ‘consent’, it was vehemently argued by Mr. Sibal that if a candidate does not expressly deny it then it will be deemed to be consent i.e. absence of denial is consent. He gave an example of an appeal made by a third party on behalf of the candidate on social media websites like Facebook. To prove that the candidate had not consented to such an appeal, he should openly deny or lodge his protest against such appeal to prove lack of consent.

The Chief Justice observed that shifting the burden of proof on the candidate to prove consent or the lack thereof would be a difficult proposition. This is especially true in the age of information technology where the candidate may not even be aware of an appeal made by a third person on his behalf to show protest or deny consent.

Mr. Sibal contended that it should therefore be examined on a case to case basis and the provision should be interpreted in light of the new dimension of communication revolution.

The Chief Justice at this stage enquired whether there are any laws analogous to Section 123(3) providing for such prohibitory grounds in other jurisdictions. Mr. Salman Kurshid also appearing in the matter stated that according to his research there are no such prohibitions in the electoral process in any other jurisdiction including Australia, UK and the US. He proposes to refer to the electoral laws prevailing in the abovementioned jurisdictions at the time of arguments.

It was further contended by Mr. Sibal that the mischief sought to be restricted is identity politics. To this, Justice Chandrachud opined that it is not possible to dissociate identity from politics in the Indian context as identity politics forms the heart of our polity. He gave the example of the scheduled caste movement which was hinged on caste based identity.

The Court also explored the role that can be attributed to the political party in the context of Section 123(3). If a candidate appeals for vote on the basis of party principles without making references to any of the prohibitory grounds and such party principles might allude to a certain religious belief then in that context can ‘his’ be restricted to mean only the candidate.

Mr. Sibal submitted that in the abovementioned scenario one has to prove consent i.e. consent of the candidate with the principles of the political party. According to him, in such case both the candidate and the leaders of the political party should be held liable for corrupt practice.

The Court further examined a scenario where an appeal is made based on the election manifesto of a political party i.e. neither the candidate nor his agent nor any other person with the candidate’s consent makes an appeal. It is only the election manifesto that is referred to and such manisfesto if it makes promises to the voter for providing benefits to the voters on coming to power then will that amount to corrupt practice and will the candidate be held liable for corrupt practice?

Mr. Arvind Dattar in this context referred to the case of S. Subramaniam Balaji vs. State of Tamil Nadu wherein this issue was considered by the Supreme Court and it was held that promises made in the election manifesto cannot be construed as corrupt practice under Section 123 of the RPA.

The Court also enquired whether a political party can be treated as a ‘person’ for the purposes of Section 123(3). According to Mr. Sibal, a political party is a ‘person’ for the purposes of taxation as it is registered under Section 29A of the RPA. Justice Lalit observed that with reference to the X^th Schedule of the Constitution, the identity of a candidate is not only his identity but the identity of the party it is affiliated to.

In his concluding remarks with reference to the interpretation of Section 123(3), Mr. Sibal impressed upon the Court that the dimensions of Section 123(3) are much wider and the issue before the Constitution Bench should is not limited only to the determination of the scope of ‘his’.

Thereafter, the Court urged Mr. Sibal to make submissions on the interplay of Sections 98 and 99. Mr. Sibal submitted that according to him, proceedings under Sections 98 and 99 are separate. He further stated that his submissions differed from that of Mr. Desai’s as he did not subscribe to his view that the trial under Sections 98 and 99 are civil in nature.

In the aforesaid context, the Court extensively deliberated on the subject of Sections 98 and 99. While doing so, the Court proposed various scenarios to determine the true nature and purport of Sections 98 and 99 especially with reference to the issue of ‘naming’ of third parties, the correct timing for ‘naming’ and sending notices to the third parties. The Court also sought to determine whether the proceedings under Sections 98 and 99 are composite in nature or are independent proceedings.

With this issue Mr. Sibal concluded his arguments. The next hearing is scheduled for tomorrow and Mr. Salman Kurshid and Ms. Indira Jaising will be addressing the Court.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

Seven Judge Constitutional Bench defining the limits of Section 123(3) RPA: Day 4 Updates

By Kasturika Kaumudi

Day 4 began with the constitutional bench rejecting a plea filed by an activist Ms Teesta Setalvad who requested the Court to redefine the meaning of ‘Hindutva’ as interpreted in the 1996 Manohar Joshi judgment and also sought a ban on the use of this term by the candidates while contesting elections. The constitutional bench clarified that it will restrict itself to the issues which have been referred to it by the lower bench and will not reopen any past issues.

Mr. Shyam Divan resumed his arguments from the previous week on the interpretation of Section 123(3) of the RPA. Mr. Divan recounted the legislative history of Section 123(3). For this purpose, he referred to the provision as it stood prior to the 1961 Amendment, specific clauses in the Bill No. 40 of 1961, notes on clauses, Select Committee Report and the debates on the Select Committee Report before the Lok Sabha.

From the discussion on the legislative debates, he argued that it was clear that the amendments were being brought about in order to widen the scope of ‘corrupt practice’ with a view to curb separatist and communal tendencies in the country. In this backdrop, Mr. Divan drew the attention of the Court to the pre-amended Section 123(3) and also on the import of the changes brought to the provision by the 1961 Amendment. Section 123(3) as it stood prior to the 1961 Amendment and post the Amendment are provided herein below:

Pre-amendment Section 123(3):

“The systematic appeal by a candidate or his agent or by any other person, to vote or refrain from voting on grounds of caste, race, community, or religion 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 that candidate’s election.”

Post-amendment Section 123(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.”

Mr. Divan emphasized on the removal of the word ‘systematic’ appeal from Section 123(3) and inclusion of ‘his’ as a prefix to ‘religion, race, caste, community or language’. He reasoned that though the legislative intent was to widen the scope of ‘corrupt practice’ by removing the word ‘systematic’, inclusion of the word ‘his’ was with the intent to give it a restrictive construction to mean only the candidate or his opponent.

It is imperative to mention here that over the course of the hearings in the past week, the Constitution Bench has been of the opinion that the pre-amended Section 123(3) was wider in scope with reference to appeal on the basis of religion, race, etc. as it did not include the prefix ‘his’. Therefore, the pre-amendment position would include within its ambit any person making an appeal on the basis of religion, race, caste etc. i.e. it could be the candidate, his agent or any other person.

The Chief Justice questioned Mr. Divan as to apart from the removal of the word ‘systematic’, how does the amendment widen the scope of corrupt practice. To this Mr. Divan responded by stating that the scope of corrupt practices has been widened by removing the word ‘systematic’ and also including ‘language’ as a prohibitory ground for appealing for votes.

Mr. Divan submitted that at the time when the Bill was tabled by the Government before the Lok Sabha, the intention was to widen the scope of Section 123(3). However, after the recommendations of the Select Committee Report, the scope of the provision was sought to be widened only to the extent of removal of the word ‘systematic’ and inclusion of ‘language’. Introduction of ‘for any person’ and ‘his’ to qualify religion, race, caste, community or language shows legislative intent to give it a restrictive meaning.

Justice Lalit observed that the pre-amended provision contained only ‘for the furtherance of the prospects of that candidate’s election’ whereas the amendment included ‘for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate’. He proposed that the scope of the provision may also have been widened by introducing a negative form of appeal ‘for prejudicially affecting the election of any candidate’.

Mr. Divan concurred with the observations made by Justice Lalit and stated that the provision was widened in the following ways: (i) by removing the word ‘systematic’; (ii) by including ‘language’ as a prohibitory ground for appeal; and (iii) by introducing ‘for prejudicially affecting the election of any candidate’ in the provision.

The Chief Justice opined that ‘prejudicially affecting the election of any candidate’ is implicit in ‘for the furtherance of the prospects of that candidate’s election’ i.e. if a candidate appeals voters to refrain from voting for another person, it would be for the furtherance of his prospects. According to the Chief Justice, prejudice is implicit in the latter and the amendment merely brought a change in the language.

Mr. Divan stated that the observations of the Chief Justice may be true but his submission would be that the introduction of ‘prejudicially affecting the election of any candidate’ was to widen the scope of the provision. Mr. Divan further submitted that the legislative history rules out the interpretation of the section in any other way. According to him, the language in the provision is abundantly clear and there is no requirement to refer to any external aids of interpretation. However, if the Court so desires, they can take the assistance of external aids.

Mr. Divan referred to the judgment in the case of Jagdev Singh Sidhanti vs. Pratap Singh Daulta. The Supreme Court in this case had held that right to conserve their language is a fundamental right guaranteed by the Constitution and this right would include would a right to agitate for the protection of the language. Therefore, political agitation for conservation of the language of a section of the citizens cannot be regarded as a corrupt practice within the meaning of Section 123(3).

In this context, the Chief Justice asked Mr. Divan to draw an analogy and replace language with religion. If that were to be allowed then political agitation for conservation of religion would also be allowed. He was of the opinion that one may practice, profess and propagate his religion but he cannot use it as a basis for garnering votes. He probed into the meaning and import of the words ‘conservation’ and ‘political agitation’ with respect to appealing for votes in the name of language.

Justice Goel in reference to the above-mentioned case observed that the case seems to hold that if there is an appeal for votes on the basis of religion, race, caste, community or language, it will fall foul of Section 123(3). However, if there is a social issue involved, then any discussion of religion, race, language etc. in reference to the resolution of such issue will not necessarily attract Section 123(3). For example, in this case the object of the Haryana Lok Samiti i.e. the Petitioner’s party was to resist the imposition of Punjabi language in the Haryana region which is a predominantly Hindi speaking region. This objective was made the platform for the election campaign and an appeal made to espouse this cause cannot be held to be in contravention of Section 123(3).

Justice Chandrachud was of the opinion that if ‘his religion’ in Section 123(3) referred only to the candidate’s religion then the last part of the provision which specifies ‘for the furtherance of the prospects of the election of that candidate’ is rendered redundant. He stated that the last part was added to clarify that any third person appealing for votes on the basis of a religion other than that of the candidate’s religion but in order to further the prospects of the candidate would be covered under Section 123(3).

Mr. Divan further contented that appealing for votes in an electoral campaign on the basis of religion, race, caste etc. is allowed, however, the embargo is with respect to the personal identity of the candidate i.e. his religion, race, caste, community and language. He explained his point by referring to Articles 15(4), 16(4), 17(4), 25(2)(b), 41 and 46 of the Constitution of India. While referring to Article 25(2)(b), he illustrated the example of a religious denomination in a particular constituency that may feel ignored or victimized or threatened. He said that if the leaders of such a religious denomination appeal to the people to vote for a particular candidate who may or may not belong to that religious denomination, then such an appeal will not fall foul of Section 123(3) as it was done in advancement of Article 25(2)(b).

Mr. Divan concluded his final arguments by submitting that the law has held the field since 1961 and there have been no intervening circumstances that require judicial intervention. Therefore, according to Mr. Divan, there is no requirement to revisit the judicial position on this issue.

Thereafter, Mr. Anoop Chaudhari, appearing on behalf of the Appellant in the second appeal, commenced his arguments. He submitted that none of the previous judgments have interpreted Section 123(3) as no reference was made to any legislative history or the Select Committee Report or the position prior to the 1961 amendment. According to him, the previous judgments have merely ‘noticed’ the provision and it is only now that the Court is interpreting Section 123(3).

Mr. Chaudhari argued for a wider interpretation of Section 123(3). According to him ‘his’ would qualify the candidate, his agent, any other person with the candidate’s consent, his election agent and the voter. He stressed on the placement of the word ‘his’ and submitted that the positioning was a deliberate attempt at widening the meaning of the section. He further argued that voter’s religion has to be read into the section as it is the voter who casts the vote and the appeal is directed at him.

In reference to Mr. Divan’s earlier example relating to a religious denomination, Mr Chaudhari submitted that such an appeal would be innocuous as long as the candidate does not refer to religion, race, caste etc. An appeal for votes by assuring the voters of upliftment, protection etc. is allowed. However, if such assurances are made on the basis of the prohibitory grounds laid down in Section 123(3), then it would amount to a corrupt practice.

Mr. Chaudhari’s second submission was with regards to the Hindi version of Section 123(3) where the word ‘his’ has been omitted. Hence, it was contended by Mr. Chaudhuri that such omission shows legislative intent to give the provision a wider meaning. He submitted that for the correct interpretation of the provision, it is imperative to consider two questions i.e. what mischief is sought to be prevented and what will result in a mischief. He also submitted that any kind of mental or emotional pressure on the voter on the basis of religion, caste, etc. will defeat the entire purpose of the mischief sought to be prevented.

Justice Chandrachud drew Mr. Chaudhari’s attention to Article 348(3) which provides that translation of a legislation in English language published in the official gazette of the state shall be deemed to be the authoritative text. Mr. Chaudhari replied by saying that he preferred using the term ‘version’ over ‘translation’ in this context.

Considering the fact that ‘his’ has been omitted in the Hindi version of the provision, the Court reflected whether such omission was deliberate or was an oversight during translation. Justice Bobde in this context requested Mr. Chaudhari to produce the Hindi version of the pre-amended provision before the Court.

The Chief Justice opined that the provision should be interpreted in the secular background of the country and therefore, the best form of interpretation is the textual and contextual interpretation.

Thereafter, Mr. B.A. Desai, appearing on behalf of one of the Respondents commenced his arguments. He said that the issue before the Constitution Bench is only with reference to ‘corrupt practices’ and not ‘his religion’ etc. He stated that any law has to be interpreted in the matrix of the fact situation of that case. According to him, the Court while interpreting a law cannot separate facts and issue otherwise the entire process then becomes only an academic exercise. Therefore, in this backdrop, Mr. Desai urged the Court that Section 123(3) is not a standalone provision and has to be looked at in the context of the entire gamut of the legislation including the statement of objects, Sections 98 and 99 and the basic structure of the Constitution.

Mr. Desai sought to argue the following issues:

1. The interpretation of the words ‘Hindu’, ‘Hindutva’ and ‘Hinduism’ fall within the scope of Section 123(3); and
2. The present case is a civil case and not a criminal or quasi-criminal case.

Since, the Court had earlier observed that it would not look into the interpretation of ‘Hindutva’, Mr. Desai decided to restrict his arguments only to the second issue. Mr. Desai referred to Sections 86, 95 and 99 of the RPA. He contended that since the present case is regarding the determination of the election petition and not of a corrupt practice, it is a civil case. According to him, proceedings under Section 99 can be maintained separately to maintain purity of elections. He stated that the 1996 Manohar Joshi case deviated from the settled position and interlinked Sections 98 and 99 which is incorrect.

Mr. Desai will continue with his arguments tomorrow.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

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

By Kasturika Kaumudi

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

Day 3 began with Mr. Shyam Divan’s arguments. He continued from the previous day and recapped the structure and scheme of his arguments. He began with the subject of corrupt practice and attempted to show how it has been dealt with by the Legislature over years. He tried to trace the legislative history of corrupt practices by elaborating on the provisions dealing with the three categories of corrupt practices namely, major, minor and illegal that existed prior to the amendments in the RPA.

With reference to corrupt practices, the court on the previous day had asked Mr. Divan about the consequences of committing a corrupt practice under the RPA. Mr. Divan had endeavored to answer the court’s question by referring to the penal provisions under the Act. While dealing with one such provision, Section 8A of the RPA, the court wanted to know as to what did disqualification under the RPA entail. Mr. Divan referred to all the provisions under the RPA that have dealt with disqualification i.e. Section 7(b), Section 11(A)(2) of the 1951 Act, Section 16(1)(c) of the 1950 Act, Section 100(1)(b) of the 1951 Act and Sections 133 and 135 (these two sections are not relevant for the purposes of this case).

Thereafter, Mr. Divan referred to the impugned judgment and reiterated the scope of the issue that has been referred to the seven judge Constitutional bench. In his opinion the only issue that merits consideration by the bench is the interpretation of “his religion” appearing in Section 123(3) of the RPA. He therefore, stated that he would be limiting his arguments only to the interpretation of Section 123(3).

Mr. Divan began his submission by requesting the court to literally/strictly interpret “his religion” under Section 123(3). He argued that the only meaning that can be attributed to “his religion” is the religion of the candidate or his opponent. There can be no other interpretation of “his religion”. The court delved on the issue and were more inclined to attribute a more expansive meaning to “his” by including within its ambit the candidate, his agent, any other person who commits a corrupt practice with the candidate’s consent, his election agent and the voter. The court with an attempt to test this proposition gave several instances where the literal interpretation of “his” will not hold good.

The Chief Justice in this context referred to two scenarios; firstly, where a candidate belonging to religion ‘A’ appealed to the people to vote for him on the basis of his religion would unquestionably be hit by Section 123(3). Secondly, a person belonging to religion ‘B’ appeals to people belonging to religion ‘B’ to unite and vote for the candidate who belongs to religion ‘A’. Would the second scenario not call for a wide interpretation of “his” to include the religion of the voters as the appeal is based on the religion of the voters i.e. religion ‘B’ and not on the candidate’s religion i.e. religion ‘A’. The Chief Justice opined that the entire purpose of the provision was to keep the electoral process free from influences based on religion, race, caste and language.

Justice Chandrachud proposed that there could be two possible interpretations of “his religion”: one, the religion of the person who is making the appeal. Second, the religion of the person in whose name the appeal is being made. At this point, Justice Rao added a third possibility i.e. the voter’s religion. Justice Chandrachud was also of the view that “his religion” has to be read in juxtaposition with the religion of the voter.

Mr. Divan argued that “his” can only be referred to the candidate’s religion as this seems to have been the legislative intent. He argued that the word ‘elector’ which refers to the voter has been defined and used throughout the RPA. Therefore, if it were the intention of the legislature to read the voter or elector’s religion in “his religion” occurring in Section 123(3), the legislature would have used the term “elector” in the provision. Justice Bobde retorted to this submission of Mr. Divan by stating that merely because the word “elector” has not been used does not mean it cannot refer to the voter/elector’s religion.

Mr. Divan further contented that “his religion” should be given a restrictive meaning so as to balance competing free speech interests. He made several references to the provision as it stood prior to the 1956 amendment to fortify his argument that “his religion” was inserted by the legislature to purposely give it a narrow construction.

Justice Bobde disagreeing with Mr. Divan’s contention explained with an illustration a situation where an election campaign is being held in Gujarat before a Tamil speaking population. The candidate does not mention his language or his opponent’s language. But, by exciting in the voter the pride of being Tamil, appeals them to not vote for the opponent who does not speak Tamil. Does this then not fall foul of Section 123(3) as the provision prohibits appealing for votes on the basis of “religion, race, caste, community or language”?

The Chief Justice observed that religion should not be the basis for either an appeal to garner votes or an appeal to refrain from voting. If Section 123(3) is interpreted in this context then the whole approach towards looking at the provision would change and “his” will be given a broader meaning.

With reference to the intention of the legislature in including “his”, Mr. Divan submitted that the provision has been constantly amended over the years, last being in 2014. Therefore, this shows the intent of the legislature to give the provision a narrow scope. He submitted that the legislature has accepted the restrictive meaning given to the provision since it has not changed its phraseology. This seems to have been the intention of the legislature as it has been well aware of the several constitutional challenges pending before the Supreme Court regarding the issue.

Justice Lokur on reference to the discussion on the provision in the Select Committee Report observed that the provision should be given the widest possible meaning. This was mainly to stamp out any traces of communalism.

Further, the Chief Justice opined that the very purpose of making an appeal for votes on the basis of religion etc. a corrupt practice was to keep the electoral process completely free from any prejudices based on religion, race, caste, community or language.

To canvass his argument of giving “his” a restrictive meaning, Mr. Divan relied on a series of judgments namely, Jagdev Singh Sidhanti vs Pratap Singh Daulta, Kultar Singh vs Mukhtiar Singh, Kanti Prasad Jayshanker Yagnik vs Purshottamdas Ranchhoddas Patel, Dr. Ramesh Yeshwant Prabhoo vs Shri Prabhakar Kashinath Kunte, Mohd. Aslam vs Union Of India & Ors and S.R. Bommai & Ors vs Union Of India & Ors.

Before breaking for lunch, the court had requested the opposing counsels appearing in the matter to prepare a list of issues to be addressed by them during the course of their arguments and apprise the court of it. On reassembling after lunch, Mr. Salman Kursheed and Ms. Indira Jaising appearing in the matter acquainted the courtwith the issues to be addressed by them during their arguments. The court after hearing the counsels observed that the court will hear only those issues that pertain to the question that is referred to the court and nothing else.

Mr. Divan continued with his arguments post lunch and referred to the abovementioned case laws. He also made several references to the parliamentary debates containing Mr. A.K Sen, the then law minister’s speech.

He contended that a reference to and discussion on religion, race, caste, community or language to garner votes is not proscribed by the provision. But, appealing for votes on the basis of a candidate’ religion, race etc. and inciting hatred and enmity on that basis. is what is proscribed. He submitted that merely because there is an issue with respect to reference to religion etc. sanitizing the electoral process from making any references to religion etc. is undesirable.

The Chief Justice opined that the ambit of the pre-amended Section 123(3) which did not contain “his religion” was considerably wider. According to him the pre-amended provision was more liberal and promoted secularism.

Mr. Divan further submitted that the correct approach towards interpreting the provision is to look at the language as was done in the Ramesh Yeshwant Prabhoo case, read the provision strictly or literally and interpret it to mean the religion of the candidate only.

However, disagreeing with Mr. Divan’s submission yet again, Justice Bobde gave a fact scenario where a Hindu candidate appeals to a minority community to vote for him assuring to protect them from all kinds of oppression and subjugation. Then is it not appealing for vote on the basis of the voter’s religion.

Mr. Divan proposes that the fact situation as illustrated by Justice Bobde could be looked at from a different perspective. He was of the opinion that appealing to an oppressed and neglected minority community to vote for a candidate who assures to protect and uplift the community will not fall foul of Section 123(3). This argument was fervently opposed by Justice Bobde who was of the opinion that such kind of sectorial and divisive political tactics for the candidate’s selfish motive of garnering votes is the causal root for a divided society on the basis of caste, community, religion etc.

Justice Chandrachud observed that since secularism is part of the Basic Structure of the Constitution, a provision runs the risk of falling foul of the Constitution if it outlaws the reference to religion on the basis of the candidate’s religion but allows reference to the religion of the voter. He said that religion, race, caste, community and language are a very important part of a person’s personal identity but that cannot be used when one steps in the public light.

The Chief Justice observed that the essence and ethos of the Constitution mandates religion to be kept separate from politics especially in secular matters like the electoral process. In view of this can religion be used in a secular activity like elections?

Mr. Divan replied by stating that the interpretation Section 123(3) as has been canvassed by him is absolutely consistent with the secular ethos of the Constitution. Mr. Divan then goes on to conclude his arguments on the interpretation of Section 123(3).

Mr. Divan before the conclusion of the hearing for the day cited a few judgments on different principles that he desired the court to rely on while addressing the issue. Principle 1: it is not desirable for the courts to revisit its earlier judgments when there is a long standing precedent and no compulsive reasons. Relied on The Keshav Mills Co. Ltd vs Commissioner Of Income-Tax and Jindal Stainless Ltd.& Anr vs State Of Haryana & Ors. Principle 2: While interpreting statues if more than one interpretation is possible, then such construction must be placed as will save the statute from constitutional challenge. Relied on Shah & Co., Bombay vs The State Of Maharashtra & Anr.

The next date of hearing has been fixed for 25.10.2016.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

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

By Kasturika Kaumudi

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

Mr. Arvind P. Datar continued his arguments on Day 2. He commenced by referring to his earlier arguments from the previous day on the interplay of Sections 98 and 99 of the Representation of People Act, 1951 (‘RPA’) and reiterated the issues framed by the three judge bench mentioned here.

He submitted that there is no conflict with the stand taken by the Supreme Court in the Manohar Joshi case. He read out several relevant portions of the judgment which talks about the mandatory nature of Section 99 especially where a returned candidate has been alleged of corrupt practice vicariously for the conduct of any other person with his consent. He stated that the question regarding the returned candidate being guilty of corrupt practice can be decided only at the end of the trial after an enquiry against the other person is concluded by issuing them notices under Section 99 and accordingly, the trial under Sections 98 and 99 has to be a composite trial. According to Mr. Datar, it will lead to an absurd situation if the trial against the returned candidate is concluded first and then the proceedings under Section 99 are commenced for the purpose of deciding whether any other person is also required to be named as being guilty of the corrupt practice. After extensive arguments on this issue, Justice Goel was of the opinion that the trial under Sections 98 and 99 must be one composite trial which may take place in two steps but not in two separate phases.

The Court then posed a question to Mr. Datar regarding the stage at which notice can be issued to a third party and the nature of such notice under Sections 98 and 99 since none of the previous cases have examined or answered this issue. Mr. Datar reiterated his submission that Sections 98 and 99 have to be interpreted to mean that notice to a third party can be issued only during trial and not at the conclusion of the trial. Furthermore, the Chief Justice opined that a notice cannot be issued mechanically by the High Court. Before issuing such notice, the High Court has to be prima facie satisfied with the role of the collaborators in the commission of the corrupt practice.

In regard to the nature of notice under Section 99, Mr. Datar referred to the third issue framed by the three judge bench i.e.,

“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?”

Mr. Datar contended that the notice to a third party or collaborator should contain the specific charges and specific portions of the speech allegedly amounting to corrupt practice. With reference to the Manohar Joshi case, he contended that the notice does not have to be in the form of a mini judgment. At this juncture, the Chief Justice expressed reservations on the use of the phrase “mini judgment” and opined that it is not appropriate to use the word in this context.

The Court also observed that the judicial principles that govern the analogous provision contained in Section 319 of the Criminal Procedure Code should also apply to Section 99 of the RPA. The Court further observed that since it is a quasi-criminal charge under the RPA, apart from the evaluation of evidence, the third person or collaborator to whom notice is being issued has to be informed of the reasons for such issuance of notice.

Thereafter, the Court considered the issue of ‘naming’ of a third person or a collaborator under Section 99. The issues under consideration were firstly, when can you ‘name’ a third party or collaborator and secondly, whether ‘naming’ is mandatory under Section 99. Mr. Datar contended that on a conjoint reading of Sections 98, 99 and 123(3), it is clear that there are only three categories of persons who can be named i.e. the candidate, his agent or any other person who has indulged in corrupt practices with the consent of the candidate.

While dealing with this subject, the Chief Justice posed a very pertinent question as to whether a person can be ‘named’ for corrupt practices under Section 99 for a speech made prior to the elections. To exhort his point further he gave an instance where elections may be scheduled for after four years. But, a person preparing to contest the elections may request some religious leaders to make speeches on his behalf. The candidate may then use the video recording of the speech at the time of elections. In such a situation can the religious leaders be ‘named’ under Section 99 for having committed a corrupt practice since the speeches were made prior to the notification of elections?

After testing various such propositions, the Chief Justice concluded that the test is not whether the speech was made prior to the elections but whether it was made with the consent of the candidate. If it was made with the consent of the candidate then the religious leaders can very well be named for having committed corrupt practices. He further questioned whether it is mandatory for the Court to name every person who has committed a corrupt practice but is not made a party. Mr. Datar replied in the negative to this proposition.

Mr. Datar through an example sought to distinguish between two scenarios – firstly, where two corrupt practices were committed, one by the candidate independently and one by his agent. Secondly, where the candidate is alleged of a corrupt practice based on the conduct of another. He reasoned that in the first scenario since the candidate had committed a corrupt practice independently, his agent need not be named. Whereas, in the second scenario, since the allegation of corrupt practice against the candidate was based on the conduct of another person, it was necessary to name that other person in order to prove corrupt practice. Therefore, ‘naming’ under Section 99 in the second scenario was contended to be mandatory and non-compliance of which would vitiate the finding of corrupt practice against the candidate.

Taking his argument forward, Mr. Datar said that there cannot be a straitjacket formula while coming to the conclusion of corrupt practice. As stated in the second scenario mentioned above, it is mandatory to name and hear the third person who made the speech before holding the candidate guilty of consenting to the corrupt practice.

The Chief Justice opined that there cannot be recording of finding of corrupt practice unless the person who has committed such corrupt practice is identified. The Chief Justice then considered the case of Mr. Abhiram Singh on its merits and observed that since all the evidence and findings are against Mr. Abhiram Singh and he was given an opportunity of being heard and to prove his case, then it is irrelevant whether the other persons were named or not. Therefore, this does not vitiate the finding or decision against him.

Post lunch, Mr. Shyam Divan appearing for one of the respondents in a connected matter commenced his arguments by narrating the brief facts of his case. Thereafter, he addressed the Court by referring to the legislative history of Section 123(3) of the RPA in order to better understand the scope and interpretation of the said section.

Mr. Divan elaborated that the issue for consideration before the bench was only limited to the interpretation of “his religion” appearing in Section 123(3). For a better understanding of Section 123(3), Mr. Divan briefly took the Court through the parliamentary debates pertaining to the section and also the various legislative amendments to the Section.

Mr. Divan will continue with his submissions when the hearing continues tomorrow.

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

By Kasturika Kaumudi

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.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

The Right to be Forgotten: Balancing Personal Privacy with the Public’s right to access Information

By Kasturika Kaumudi 

Evolution of the right and Global framework

In the Internet age, when access to information is quick and easy, procuring personal information or past records about an individual is no longer a herculean task. The relevance of such information or the duration for which such data should be available for public access has hitherto not been debated.

There is growing global debate on a new right called “the right to be forgotten” or “the right of erasure”. This right allows people to request for removal of their personal information/data online after a period of time or if such information/data is no longer relevant. The origin of this right can be traced back to the French jurisprudence on the ‘right to oblivion’ or droit à l’oubli. The rationale behind this right was to allow criminal offenders who have already served their sentence to object to the publication of information regarding their crime and conviction. This was done to ease their process of social integration.

It was along these lines that the 1995 EU Data Protection Directive acknowledged the right to be forgotten. Under the Directive, it was stipulated that the member states should give people the guaranteed right to obtain from the ‘controller’ the rectification, erasure or blocking of data relating to them, the processing of which does not comply with the provisions of the Directive. The term ‘controller’ here refers to a natural or legal person, public authority, agency or any other body which alone or jointly determines the purposes and means of processing personal data.

In May 2014, the Court of Justice of the European Union (‘Court’) recognized the right to be forgotten as a part of the fundamental right to privacy in the Google case. The plaintiff, in this case, had requested for delinking of search results appearing on Google and the deletion of newspaper articles appearing online with respect to bankruptcy proceedings against him. The Court held that individuals have a right to request search engines to delink information which causes prejudice to them. However, the Court was careful to state that this right is not absolute and can be applied only when the data becomes ‘inadequate, irrelevant, excessive, not kept up to date, or kept for longer than necessary’ with respect to the purpose for which it was collected or processed. Accordingly, the Court directed Google to delink the search results in the instant case. It was further held that the publication of accurate data may be lawful at a given point in time, but in due course, it might become inconsistent with the law.

While the judgment in the Google case is a step in the right direction, it leaves much to be desired. The Court did not set out any guidelines or parameters to filter out information as ‘inadequate’ or ‘irrelevant’ or ‘excessive’. It has thrust the onerous task of balancing the right to privacy of an individual and the public’s right to access information on private search engines like Google. This raises critical questions regarding the suitability of private entities taking decisions which are of constitutional import. Pursuant to this judgment, the EU adopted the Data Protection Reforms which includes the right to be forgotten as an essential right under Article 17 of the Data Protection Regulations. This lays down the conditions for application of the right to be forgotten, and requires entities processing personal data to inform third parties regarding requests for erasure of links to any personal data. A detailed discussion of these regulations and their impact on India can be found here.

Challenges in enforcement

There are many legal and technical challenges in the enforcement of the right to be forgotten. The success rate of governments across the world in banning or removing pornographic websites or torrent sites from the Internet has not been great, since there are various ways of circumventing such bans. Further, the blocking or delinking of URLs by search engines does not guarantee that such information has been blocked or deleted from the Internet. There is also no way to ensure that such information is not uploaded again.

To enforce the ruling of the case discussed above, Google has created a mechanism through which an individual can make a request for taking down of or delinking of a specific search result bearing an individual’s name. Google evaluates such requests on various parameters like whether these results are an infringement on his right to privacy or whether such information is of public interest. In case of the former, the individual’s right to be forgotten trumps the public’s right to access information. However, if the information is of public interest, the right to information of the public prevails over privacy rights. This squarely makes Google the decision maker of the relevance, adequacy, and need for data to be available online for public access or not.

With the growing recognition of the right to be forgotten, the number of requests that search engines receive for taking down or delinking is only likely to increase, making it extremely difficult and cumbersome to scrutinize such requests manually. According to Google’s Transparency Report, as on 9^th October, 2016, Google had received 565,412 requests for the removal of URLs. The Report further states that it has already evaluated 1,717,714 URLs since May, 2014. The Report shows that Google has removed 43.2% of the URLs from the requests received. With a substantial increase in the number of requests, search engines may even consider using algorithms to deal with such requests instead of manually evaluating the privacy rights vis-à-vis public interest.

Further, search engines are also likely to tread on the side of caution and accept such requests rather than face expensive legal challenges across jurisdictions for non-compliance. This right may be misused by individuals as it will lead to artificial alteration of the content available online which may result in the delinking of pertinent information.

Recent developments in India

The data protection regime and data privacy laws of India are not comprehensive and dynamic enough to respond to technological advances in the modes of collection, transfer and use of personal information. The Information Technology Act, 2000 and the rules framed under the Act make up the primary legal framework that governs this subject. The Delhi High Court is currently hearing a matter (Laksh Vir Singh Yadav vs. Union of India, WP(C) 1021/2016) where the petitioner has requested for the removal of a judgment involving his mother and wife from an online case database. The petitioner claims that the appearance of his name in the judgment is causing prejudice to him and affecting his employment opportunities. It will be interesting to see the outcome of this case and how the larger debate of the right to privacy of an individual versus the right of public to access information unfolds in this case.

It is pertinent to note that the Delhi High Court is dealing with the request for removal of a court order which is a public document. This request is unusual and distinct from a request for delinking of search results appearing in search engines like Google since such delinking does not result in the removal of the information itself. Allowing the removal of such judgments from online case databases could result in the expunging of public records. Furthermore, the removal of judgments from online public databases will obstruct public access to case materials shedding light on critical questions of law.

While implementing the right to be forgotten, a very fine balance has to be struck between the right to freedom of speech and expression, public interest and personal privacy. To balance these conflicting rights, the judiciary may consider implementing a system where personal information like names, addresses etc. of the litigants are redacted from reportable judgments/orders especially in personal disputes. The courts have, in the past, refrained from divulging the identities of parties in order to respect their privacy in many rape or medico-legal cases.

With many unanswered questions surrounding this right, India requires a comprehensive data protection regime to regulate the entities collecting and processing personal data and to define the terms of use, storage and deletion of such personal data. This will ensure that such entities are obliged to take due care of the personal data in their possession and will also provide a framework for dealing with requests for removal or erasure of such personal data.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi