Posted on 16.08.17 by Satya Prasoon
The diversity of identities in India poses a challenge to free and fair elections. A candidate appealing for votes on the basis of religion, race, caste, community or language can undermine the election process. Section 123 (3) of the Representation of the People Act, 1951 (RPA) prohibits this act.
C. D. Commachen challenged the election of Abhiram Singh to the Santa Cruz constituency alleging that Abhiram Singh had violated, among other provisions, Section 123 (3) of the RPA by appealing for votes based on the Hindu religion. The Bombay High Court found Abhiram Singh guilty of violating the provisions and this decision was taken before a 3 judge bench of the Supreme Court, which then referred the matter of interpretation of Section 123 (3) to a Constitutional Bench of 5 judges. An identical issue had been raised in a petition filed by Narayan Singh against BJP leader Sunderlal Patwa, which was referred to a seven judge bench. Hence, these two Civil Appeals were tagged and decided together.
The Court looked into whether a ‘corrupt practice’ meant that the religion, race, caste, community or language (ascriptive identities) of any candidate was appealed to while campaigning, or that of the voters’ as well. The question arose due to the use of the word “his” in the provision. The appellants contended that it refers to the ascriptive identities of only the candidate, while the respondents contended it referred to the ascriptive identities of the voter as well as the candidate. The Court deliberated on whether the section should only be read literally (i.e. literal interpretation) or whether the purpose of the legislation should be considered. (i.e., purposive reading).
A literal interpretation is when the words of a legal provision are read and applied as per their dictionary meaning. The general rule followed is that literal interpretation must be resorted to if unambiguous words are used. Purposive reading is where the court looks at the purpose of the statute – why the statute was passed and what wrong it sought to remedy and then the statute is interpreted to benefit this purpose. This is used when the literal interpretation leads to an absurd result or goes against the purpose of the statute.
The majority opinion, given by Justice Lokur and Justice L. Nageswara Rao, examined the legislative history of the provision. Recognising the importance of free and fair elections and that law must always keep up with the times, they adopted a purposive reading, and held that to be a ‘corrupt practice’, an appeal must be made on the basis of ascriptive identities of a) any candidate, b) his agent, c) any other person making the appeal with the permission of the candidate, or d) the voter. Justice Bobde, in his concurring judgement, stated there was no need to go into which method of interpretation to adopt and that the word “his” referred to all actors involved in the process: All candidates (and their agents, etc.) and all voters. Chief Justice Thakur, in his concurring judgement, added that an interpretation that removed religious considerations from the secular functions of the State must be adopted.
The dissenting opinion by Justice Chandrachud, Justice Goel, and Justice Lalit stated that the provision should be interpreted strictly and literally since the consequences of being found guilty of engaging in a ‘corrupt practice’ were severe – ranging from imprisonment to the election being declared void. A purposive reading would amount to rewriting the law, which was the role of the legislature and not the judiciary. The opinion asserted that although the Constitution constantly sought to protect secularism, it also sought to foster a sense of inclusion and was not oblivious of the history of injustices carried out on the grounds of religion, race, caste and language. Justice Chandrachud stated that prohibiting appeals to the voter’s religion, race, caste, community or language would “reduce democracy to an abstraction” and violate the freedom of speech and expression under Article 19(1)(a).
The Court, by 4:3 majority, held that appealing to the ascriptive identites of any candidate as well as the voters constitutes a ‘corrupt practice’ under Section 123(3).
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