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In a landmark verdict seeking to separate religion, caste and other issues from politics, the Supreme Court, by a majority verdict, on Monday held as "corrupt" the practice of candidates appealing for votes on the basis of these identities included not only him but his agents and voters.
In a marked departure from the view held in the 1995 "Hindutva" judgement that the term 'his' used in section 123 (3)of the Representation of the People Act meant the religion, caste, etc of candidates only, a seven-judge bench headed by Chief Justice T S Thakur, by a majority of 4:3, held on Monday that any appeal for votes on these grounds would amount to "corrupt practice".
The court held that the provisions of the R P Act, which say that seeking vote by a candidate in the name of "his" religion, caste, race, religion and language in the election law, included candidates, his agents and voters also.
"An appeal in the name of religion, race, caste, community or language is impermissible under the R P Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate's religion or the religion of the election agent or that of the opponent or that of the voter's," the CJI, who concurred with majority verdict written by Justice M B Lokur, said.
"So read together, and for maintaining the purity of the electoral process and not vitiating it, sub-section (3) of Section 123 of the RP Act must be given a broad and purposive interpretation thereby bringing within the sweep of a corrupt practice any appeal made to an elector 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 the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the ground of the religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector," said the majority view, also shared by Justices S A Bobde and L Nageswara Rao, said Justice Chandrachud, writing the minority verdict.
"We hold that there is no necessity for this court to take a view at variance with what has been laid down.
"The 'his' in Section 123(3) does not refer to religion, race, caste, community or language of the voter. 'His' is to be read as referring to the religion, race, caste, community or language of the candidate in whose favour a vote is sought or that of another candidate against whom there is an appeal to refrain from voting."
The verdict came on a batch of petitions including the one filed by Abhiram Singh whose election as an MLA in 1990 on Bharatiya Janata Party ticket from Santacruz assembly seat in Mumbai was set aside by the Bombay high court.
Justice Lokur, writing for the majority, considered "simultaneous and contemporaneous amendments" made in the election law and insertion of Section 153A (promoting enmity in different groups) in the IPC to highlight the intention of the legislation that it wanted to curb use of religion, castes etc in election and otherwise.
The bench said that instead of literal, there should be purposive and broad interpretation of the RP Act provision.
"The Representation of the People Act is a statute that enables us to cherish and strengthen our democratic ideals. To interpret it in a manner that assists candidates to an election rather than the elector or the electorate in a vast democracy like ours would really be going against public interest," Justice Lokur said.
Quoting Winston Churchill, the bench said if the electoral law needed to be "understood, interpreted and implemented in a manner that benefits the 'little man' (voter), as mentioned by the British Prime Minister, then there has to be purposive interpretation of the term "his" religion etc used in the Act".
"There is no doubt in our mind that keeping in view the social context in which sub-section (3) of Section 123 of the Act was enacted and today's social and technological context, it is absolutely necessary to give a purposive interpretation to the provision rather than a literal or strict interpretation as suggested by counsel for the appellants, which, as he suggested, should be limited only to candidate's religion or that of his rival candidates," it said.
The CJI, in his concurring views, added one more dimension to the interpretation of the term "his religion" of the RP Act by saying secularism is part of the basic structure of the Constitution and it should be construed in such manner that the religion remained an individual affair.
"...Mixing religion with state power is not permissible while freedom to practice profess and propagate religion of one's choice is guaranteed. The state being secular in character will not identify itself with any one of the religions or religious denominations...The elections to the state legislature or to Parliament or for that matter or any other body in the State is a secular exercise just as the functions of the elected representatives must be secular in both outlook and practice."
The majority view said that the word 'his', used the section not only referred to the candidate or his agent but was also "intended to refer to the voter i.e. the elector".
"What is prohibited by a candidate is an appeal to vote on certain grounds. The word 'his' therefore must necessarily be taken to embrace the entire transaction of the appeal to vote made to voters and must be held referable to all the actors involved i.e. the candidate, his election agent etc. and the voter," it said.
The CJI said that the amendment in the election law did not intend to "relax or remove" the restriction put on appeal for votes on the ground of religion, caste etc.
"Seen both textually and contextually the argument that the term 'his religion' appearing in the amended provision must be interpreted so as to confine the same to appeals in the name of 'religion of the candidate' concerned alone does not stand closer scrutiny and must be rejected," he said.
"Electoral processes are doubtless secular activities of the State. Religion can have no place in such activities for religion is a matter personal to the individual with which neither the State nor any other individual has anything to do. The relationship between man and God and the means which humans adopt to connect with the almighty are matters of individual preferences and choices," he said.
The CJI concluded by saying "the sum total of Section 123 (3) even after amendment is that an appeal in the name of religion, race, caste, community or language is forbidden even when the appeal may not be in the name of the religion, race, caste, community or language of the candidate for whom it has been made".
"So interpreted religion, race, caste, community or language would not be allowed to play any role in the electoral process and should an appeal be made on any of those considerations, the same would constitute a corrupt practice."
Justice Chandrachud, who wrote the 55-page-long dissenting judgement, said the earlier interpretion that "his religion" meant the faith of candidates only was correct and did not "suffer from manifest error".
"No case has been made out to take a view at variance with the settled legal position that the expression 'his' in Section 123(3) must mean the religion, race, community or language of the candidate in whose favour an appeal to cast a vote is made or that of another candidate against whom there is an appeal to refrain from voting on the ground of the religion, race, caste, community or language of that candidate," he said.
Justice Chandrachud said that the RP Act has undergone several parliamentary amendments and Parliament would be aware of the interpretation which has been placed by this court in Section 123(3).
"Despite this, the provision has remained untouched though several others have undergone a change. In the meantime, elections have been held successfully, governments have changed and majorities have been altered in the house of Indian democracy.
"There is merit in ensuring a continuity of judicial precedent. The interpretation which has earlier been placed on Section 123(3) is correct and certainly does not suffer from manifest error," he said.
Dealing further, the minority verdict said that no form of government is perfect and the actual unfolding of democracy and the working of a democratic constitution may suffer from imperfections.
"But these imperfections cannot be attended to by an exercise of judicial redrafting of a legislative provision. Hence, we hold that there is no necessity for this court to take a view at variance with what has been laid down," he said.
He also said "social mobilisation is a powerful instrument of bringing marginalised groups into the mainstream" and the electoral discussions on legitimate concerns of citizens, facing injustice on the ground of religion, race, caste, community or language, cannot be barred as it would "reduce democracy to an abstraction".
"To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction. Coupled with this fact is the constitutional protection of free speech and expression in Article 19(1)(a) of the Constitution," he said.
Justice Chandrachud, however, said that an appeal by a candidate on the ground of 'his' religion, race, caste, community or language is a solicitation of votes on that foundation would constitute an appeal on the ground of religion.
"However, the statute does not prohibit discussion, debate or dialogue during the course of an election campaign on issues pertaining to religion or on issues of caste, community, race or language. Discussion of matters relating to religion, caste, race, community or language which are of concern to the voters is not an appeal on those grounds," he said.