Balance between Article 19(2) and Section 123 of the Representation of People’s Act

On a reading of this case analysis, the readers will learn that the Court emphasized on interpretation of statutes in the light of the current time and held that neither the religion of self nor of the rival candidate can be used for party politics.
TITLEABHIRAM SINGH & ORS. Vs. C.D. COMMACHEN (Dead) by L.R.s. & ORS.
CITATIONAIR 2017 SC 401
COURTSupreme Court of India
JUDGES/CORAMChief Justice T.S. Thakur, Justice Madan B. Lokur, Justice L. Nageswara Rao, Justice S.A. Bobde, Justice A.K. Goel, Justice U.U. Lalit and Justice D.Y. Chandrachud
DATE OF JUDGEMENT02.01.2017

Introduction

The role of judiciary of any country, inter alia, is to interpret the statutes governing the concerned nation. In India, Judiciary interprets and construes the legislations made by the Legislature. We all know judiciary has the function of applying the law and that can be done only when the law is clear and properly interpreted. The present case also dealt with interpretation of Section 123(3) of the Representation of the People Act 1951, which bars identity politics.  

Facts

The facts of the case are as follows: The present case arose out of two earlier decisions of the Supreme Court. First in 1992 was the case of Abhiram Singh v. C.D. Commachen. In this case, in 1990, Commachen challenged Abhiram Singh’s election to Santa Cruz constituency, before the Bombay High Court. Abhiram Singh had allegedly made communal statements. Hearing the appeal, a three-judge bench of the Supreme Court was of the view a five-judge bench should decide upon the issue. The main issue in the case related to what constituted ‘corrupt practises’ under Section 123(3) of the Representation of the People Act 1951. No court had laid down any authority on the definition and hence, the matter was referred to a larger bench to “avoid miscarriage of justice”.          

Next, in 1995 was the case of Narayan Singh v. Sunderlal Patwa, also relating to corrupt practises of a candidate during elections. Election petition challenging the election of Sunderlal on ground of corrupt practise was dismissed by the High Court. In an appeal before the Supreme Court, the Constitution bench held that the situation of amendment in Section 123(3) of the RPA 1951 had the effect of making a ‘corrupt’ practise, a ‘non-corrupt’ one. In other words, ‘corrupt practice’ for purpose of Act before amendment could cease to be a corrupt practice after the amendment. On one hand, deletion of certain words widened the scope, while addition of other words had the opposite effect hence, that case was also referred to a larger bench of seven judges.

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When Abhiram Singh was subsequently taken up by the Court, it was held that since the main question in this appeal was a part of the question in Narayan Singh’s appeal, the seven-judge bench would decide on both cases. Thus, in the final matter hearing, a seven-judge bench of the Supreme Court gave its interpretation of the Section 123(3) of RPA.

Issues

The main issue in the case was: Whether or not a candidate in an election can appeal to religion of the people/voters, in view of Section 123(3) of the Representation of the People Act 1951.

Summary of Court Decisions and Judgement

When the case of Abhiram and Narayan Singh was first referred to the Supreme Court, the learned judges felt the matter therein to be decided by a larger bench. This was due to the importance as well as sensitivity of the questions so involved.

In its judgement on the case, the seven-judge bench was divided in their opinion by 4:3. The majority verdict was that Section 123(3) barred appealing to identities of the candidates in election, as well as that of the voters. Justice D.Y. Chandrachud, Justice A.K. Goel and Justice U.U. Lalit gave the dissenting opinion. The dissent was based on constitutional reasons and opposed the purposive interpretation adopted by the majority.

Analysis

Section 123(3) of the Representation of the People Act 1951 penalises corrupt election practises in the following terms “the appeal… to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language”. Thus, the important question to be considered was the meaning of ‘his’ in the concerned provision. This was so, as the provision could be construed in many ways.

It was important to interpret the legislation as it would have a great impact on election practises in India. India is home to diverse religions, races, castes, communities and languages. It is very common for candidates and politicians to engage in vote bank politics by appealing to the religious sentiments of the masses. It is now a settled rule of interpretation of statute that the intention and object of the legislature also has to be taken into consideration along with the language of statute.

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Thus, in view of the external environment as well as political environment of the country along with legislature’s objectives, it was correctly held by the majority of the bench that bar under Section 123(3) must not only be confined to a candidate’s religion, race, caste, community or language. The Section operates both ways. The Court observed that the Section intended to serve the broad purpose of checking appeals to religion, race, community, case and language, and the same had to be preserved by the Court’s interpretation.

Furthermore, the amendments to Section 123 of the Act by the insertion of Sub-section 3A made the legislation more comprehensive. In that view, the Court observed that Section 123(3) had to be read with Section 123(3A) along with the newly added Section 153A of the Indian Penal Code 1860.

From the point of view of Constitution, Article 19 seems to create a hurdle. Article 19(1)(a) provides protection to the fundamental right of free speech and expression. However, the right is curtailed by reasonable restrictions imposed on it by Article 19(2). Thus, Article 19(2) protects Section 123 of the RPA. Thus, the Court correctly held that “There is no warrant for making an assumption that Parliament while enacting Section 123(3) intended to sanitize the electoral process from the real histories of our people grounded in injustice, discrimination and suffering. The purity of the electoral process is one thing. The purity of the process is sought to be maintained by proscribing an appeal to the religion of a candidate (or to his or her caste, race, community or language) or in a negative sense to these characteristics of a rival candidate.”

Conclusion

The Court very aptly held “There is no doubt in Court’s 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”. The Court emphasized on broad interpretation of the provision to reach its verdict. The judgement has been hailed to wipe out identity politics largely. Statutory interpretation has time and again be used by the courts to decipher ambiguous and vague legislations like Section 123(3) of the RPA 1951.

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