‘His’ Story: Section 123(3) of The Representation of the People Act, 1951

Sub-section (3) of Section 123 of The Representation of the People Act, 1951 deems the following to be a ‘corrupt practice’:

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.

Bench of Seven Judges in Abhiram Singh v. C.D. Commachen, [Civil Appeal No. 37 of 1992] interpreted the meaning of the pronoun: ‘his’. A word, it is said, defines a universe.

Goel, Lalit and Dr. D.Y. Chandrachud JJ found it “impossible to construe sub-section (3) as referring to the religion, race, caste, community or language of the voter”. The 3 Judges considered it ‘settled’ law that: “his religion (and the same principle would apply to his race, his caste, his community, or his language) must refer to the religion of the person in whose favour votes are solicited or the person against whom there is an appeal for refraining from casting a ballot”.

On that view, it was easy to infer: “Parliament would be aware of the interpretation which has been placed by this Court on the provisions of Section 123(3). Despite this, the provision has remained untouched though several others have undergone a change. There is merit in ensuring a continuity of judicial precedent. No form of government is perfect. 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”.

Lokur and Rao JJ, in contrast, did not consider the interpretation of sub-section (3), ‘well-recognized‘ or ‘settled‘. They would rather assist the elector or the electorate rather than the candidates to an election. After all, Parliament has always grappled with the necessity of curbing communalism, separatist and fissiparous tendencies during an election campaign and “the concerns which formed the ground for amending Section 123(3) of the Act have increased… now with access to millions through the internet and social media as well as mobile phone technology, none of which were seriously contemplated till about fifteen years ago“.

Indeed, it would be an “unreasonable shrinkage to hold that only an appeal referring to the religion of the candidate who made the appeal is prohibited and not an appeal which refers to religion of the voter. It is quite conceivable that a candidate makes an appeal on the ground of religion but leaves out any reference to his religion and only refers to religion of the voter” [Bobde J]. And, electoral processes are doubtless secular activities of the State. The State can and must resist interference of religions and religious beliefs with elections to legislative bodies [Thakur CJI; S.R. Bommai, 1994 (3) SCC 1]. 4 Judges thus held the pronoun in the singular ‘his’ refers to a candidate or his agent or any other person with the consent of a candidate or his election agent and to the voter. Thus interpreted, religion, race, caste, community or language would now not be allowed to play ‘any role‘ in the electoral process.

Nonetheless, it remains true of the dissent:

Section 123(3) does not prohibit electoral discourse being founded on issues pertaining to caste, race, community, religion 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. Caste, race, religion and language are matters of constitutional importance. The Constitution does not deny religion, caste, race, community or language a position in the public space. Discussion about these matters – within and outside the electoral context – is a constitutionally protected value and is an intrinsic part of the freedom of speech and expression.”

Scholars shall remain warned that ‘electoral discourses‘ or ‘discussion of matters‘ are not necessarily appeals to vote or not vote. It is a matter of evidence for determining whether an ‘appeal‘ has at all been made to an elector.

At first glance, the Supreme Court has arrived at a just majority decision. Other opinions shall follow this last word.

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