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 1st 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 2nd Amendment took place in 1958 and ‘with the consent’ was introduced in the section. Thereafter, the 3rd 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 Xth 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.