AUTHOR- PRIYANSHI GAUR, CHANDERPRABHUJAIN COLLEGE OF HIGHER STUDIES AND SCHOOL OF LAW.
The 7-judge bench held that appealing to the ascriptive identities of any candidate and that of the voters constitutes a ‘corrupt practice’ under Section 123(3) of the Representation of the People Act, 1951.
STATUTES AND PROVISIONS INVOLVED –
The Representation of People’s Act, 1951
The Constitution of India
Section 100, section 123, section 123(3) of the Representative of People’s act
Article 19 of the Indian Constitution
The Representation of the People Act, 1951, aims to maintain the purity of the electoral process and provide for the conduct of elections by enlisting the “corrupt practices” and other offences which, if proved, may lead to disqualification of a candidate under Section 100 of the Representation of the People Act, 1951.
Abhiram Singh, a BJP candidate contesting from Santacruz constituency in Mumbai in 1990, was accused of having indulged in corrupt practices by appealing to the voters on the ground religion. The matter came up before the Supreme Court which then had to ascertain the scope of Section 123 of the Representation of the People Act, 1951.
FACTS IN BRIEF-
•Abhiram Singh was elected to the No. 40, Santa Cruz Legislative Assembly Constituency in 1990 for the Maharashtra State Assembly and his election was challenged by Commachen in the Bombay High Court. While hearing the appeal, a Bench of three learned Judges, on April 16, 1992, expressed the view that the content, scope and what constitutes a corrupt practice under sub-sections (3) or (3A) of Section 123 of the Representation of the People Act, 1951 needs to be laid down clearly to avoid miscarriage of justice in interpreting ‘corrupt practice’. The Bench was of the opinion that the appeal requires to be heard and decided by a larger Bench of five Judges of the Court. In Narayan Singh v. Sunderlal Patwa, the election of Sunderlal Patwa from the Bhojpur Constituency No. 245 in Madhya Pradesh to the Legislative Assembly in 1993, was under challenge on the ground of a corrupt practice, in that the returned candidate had allegedly made a systematic appeal on the ground of religion in violation of Section 123(3) of the Representation of the People Act. “The High Court in the case construed the provision of sub-section (3) of Section 123 of the Representation of People’s Act to mean that, it will not be a corrupt practice when the voters belonging to some other religion are appealed, other than the religion of the candidate. This construction gains support from a three-Judge Bench decision of this Court in Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel as well as the subsequent decision of this Court in Ramesh Yeshwant Prabhoo (Dr) v. Prabhakar Kashinath Kunte. While the five-Judge Bench was hearing the Abhiram Singh Case on January 30, it was informed that an identical issue was raised in the election petition filed by one Narayan Singh against BJP leader Sunderlal Patwa and another Constitution Bench of five Judges of the Apex Court has referred to a larger Bench of seven Judges. Thereafter, an Order was made that “since one of the questions involved in the present appeal is already referred to a larger Bench of seven Judges, we think it appropriate to refer this appeal to a limited extent regarding interpretation of sub-section (3) of Section 123 of the 1951 Act to a larger Bench of seven Judges.”
•Whether the words “his religion” in Section 123(3) of the Representation of the People Act, 1951, have restricted the scope to only include religion of the candidate, or his agent, or any other person with the consent of the candidate or have widened to include the religion of the voters as well.
•Whether the Article 123(3) of the Representation of the People Act, 1951, violated Article 19(1)A of the Indian Constitution which guarantees the right to freedom of speech and expression, as it restricts the candidate’s political speech to some measure.
There can be no uncertainty that the word ‘his’ utilized in sub-section (3) musthave importance and it can’t be overlooked or likened with the word ‘any’ to bring inside the net of sub-section (3) any intrigue wherein there is any reference to religion. The religion framing the premise of the intrigue to cast a ballot or cease from deciding in favor of any individual must be of that contender for whom the intrigue to cast a ballot or abstain from casting a ballot is made. This is obvious from the plain language of sub-section 3) and this is the main way wherein the word ‘his’ utilized in that can be interpreted.
At the point when the intrigue is to decide on the ground of ‘his’ religion for the encouragement of the possibilities of the appointment of that up-and-comer, that intrigue is made based on the religion of the contender for whom votes are requested. Then again, when the plot is to abstain from deciding in favor of any individual on the ground of ‘his’ religion for preferentially influencing the appointment of any competitor, that intrigue depends on the religion of the applicant whose political race is looked to be preferentially influenced. It is hence certain that for requesting votes in favor of an up-and-comer, the intrigue disallowed is what is made on the ground of religion of the contender for whom the votes are looked for; and when the intrigue is to avoid deciding in favor of any up-and-comer, the forbiddance is against an intrigue on the ground of the religion of that other up-and-comer. The main is a positive intrigue and the second a negative intrigue. There is no uncertainty in subsection (3) and it shows the specific religion based on which an intrigue to cast a ballot deciding in favor of any individual is precluded under sub-section (3).
The 7-Judge Bench delivered a landmark verdict, where by a majority of 4:3, the majority Judgment delivered by Justice Lokur with concurring Judgments by Chief Justice T.S. Thakur and Justice Bobde, decided that an appeal on the grounds of religion – be it the candidate, the agent of the candidate, any person with the consent of the candidate, or even the religion of the voters would amount to a corrupt practice. The majority in its Judgment gave a broad construction to the words of Section 123 of the Representation of the People Act, 1951 and has expanded its boundaries to take in any appeal on the grounds of religion, caste, language or race.
To keep up national uprightness and harmony among the residents of the nation and to keep up the mainstream character of the pluralistic culture to which we have a place sections 123 and 123 (3A) of the Representation Act have been joined. For keeping up immaculateness in the political decision process and for keeping up harmony and amicability in the social texture, it turns out to be important not exclusively to prosecute the gathering to a political decision liable of degenerate practice yet to name the partners of such degenerate practice if there be any. The bench interpreted the statute literally and followed different cases such as Ambika Sharan Singh vs. Mahant Mahadeva Giri and others, Dr. Vimal (Mrs.) v. Bhaguji & Ors, M.P. Gopalakrishnan Nair vs. State of Kerala and Ors, S.R. Bommai vs. UOI, Indira Gandhi vs. Raj Narain, Saifuddin Saheb v. State of Bombay, etc.
RATIONALE BEHIND THE JUDGEMENT–
At the point when India is said to be a mainstream State, it doesn’t imply that we dismiss the truth of an inconspicuous soul or the importance of religion to life or that we magnify irreligion. It doesn’t imply that secularism itself turns into a positive religion or that the State expects divine privileges. Through confidence in the Supreme is the fundamental standard of the Indian convention, the Indian State won’t recognize itself with or be constrained by a specific religion. We hold that nobody religion ought to be given particular status, or one of a kind qualification, that nobody religion ought to be agreed uncommon benefits in national life or global relations for that would be an infringement of the fundamental standards of majority rules system and in opposition to the eventual benefits of religion and government. This perspective on strict unprejudiced nature, of cognizance and patience, has a prophetic task to carry out inside the national and global life. No gathering of residents will arrogate to itself right and benefits, which it denies to other people. No individual ought to endure any type of handicap or segregation due to his religion yet all similar ought to be allowed to share to the fullest degree in the basic life. So, the court in order to ensure secularism by interpreting thus happens to be this landmark judgment.
LAW RELATED TO THE CASES-
•Section 123 (3) of The Representation of the People Act, 1951 123. Corrupt practices: The following shall be deemed to be corrupt practices for the purposes of this Act: (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:
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
(3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. Explanation: For the purposes of this clause, "sati" and "glorification" in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987 (3 of 1988).
Intrigue for the sake of religion, race, station, network or language is impermissible under the Representation of the People Act, 1951 and would establish a degenerate practice adequate to abrogate the political decision in which such intrigue was made in any case whether the intrigue was for the sake of the up-and-comer’s religion or the religion of the political decision specialist or that of the adversary or that of the voter’s. The entirety of Section 123 (3) significantly after alteration is that intrigue for the sake of religion, race, station, network or language is taboo in any event, when the intrigue may not be for the sake of the religion, race, standing, network or language of the possibility for which it has been made. So deciphered religion, race, standing, network or language would not be permitted to assume any job in the discretionary procedure and should an intrigue be made on any of those contemplations, the equivalent would establish a degenerate practice.