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 Representation of People Act, 1951 (‘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.