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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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