The 7-judge bench held that appealing to the ascriptive identities of any candidate and that of the voters constitutes a ‘corrupt practice’ under Section 123(3) of the Representation of the People Act, 1951.
This case has a long history of 25 years in the Supreme Court where two separate appeals have been tagged together on the limited question of the scope of Sec. 123(3) of RPA, 1951. Section 123 of Representation of Peoples Act, 1951 (RPA) declares appeals on ascriptive identity markers – like religion, caste, language, community – as ‘corrupt electoral practices’.
The cases, Abhiram Singh v C.D. Commachen and Narayan Singh v Sunderlal Patwa came before the court in 1992 and 1995 respectively and were heard by different benches separately before being tagged together in January 2014 before a 7 judge bench.
In Abhiram Singh v Commachen, the election in 1990 of Abhiram Singh to No 40, Santa Cruz Constituency was successfully challenged by Commachen, the rival candidate in Bombay High Court for making communal statements during the election. While hearing the appeal, a 3 judge bench of the Supreme Court expressed the view that the content, scope and what constitutes “corrupt practice” under S. 123(3) needs to be heard and decided by a constitutional bench of 5 judges.
In Narayan Singh v Sunderlal Patwa, the election of Sunderlal Patwa from Bhojpur Constituency was challenged, alleging a ‘corrupt practice’ in that the returned candidate had made systematic appeals on the ground of religion, violating Section 123(3) of the Act. The election petition was dismissed. On appeal at the Supreme Court, a constitution bench of 5 judges subsequently referred it to the larger bench of 7 judges. Thereafter, when Abhiram Singh was taken up for consideration by the Constitution bench, it was decided that it will be tagged along with the Sunderlal Patwa case, on the limited question of interpretation of Section 123(3) of RPA Act. This is how the matter came before a 7 judge bench of the Supreme Court.
However, the key question before the 7 judge bench hinged on the interpretation of the word ‘his’ occurring in Section 123(3) of the Representation of the Peoples’ Act, 1951. The court scrutinised if the words ‘his religion, race, caste, community or language’ appearing in Section 123(3) also covers the religion, race caste or community of the candidate only or the voter also.
The question before the court was the interpretation of pronoun ‘his’ under the section and if it qualified only electoral candidates, or whether it qualified the voter as well. In simple words, did the Section only cover statements such as “I am a Hindu, so vote for me” (positive appeal on candidate’s identity) and “My opponent is a Muslim, do not vote for him”, (Negative appeal on opponent’s identity) or did it include a broader range of appeals on basis of voters religion (caste, language, community).
The Court, by 4:3 majority, held that appealing to the ascriptive identities of any candidate as well as the voters constitutes a ‘corrupt practice’ under Section 123(3).
Whether the ‘religion, race, caste, community or language’ mentioned in section 123(3) of the Representation of People’s Act is that of the candidate or both the candidate and the voter.