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 Chaudhary, 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. Chaudhary 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 Chaudhary 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. Chaudhary’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. Chaudhury 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. Chaudhary’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. Chaudhary 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. Chaudhary 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. Ashok 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.