In a judgement that will have far reaching ramifications, the Supreme Court on Monday held that any appeal for votes on the ground of “religion, race, caste, community or language” amounted to “corrupt practice” under the election law provision.
Referring to the term ‘his religion’ used in section 123(3) of the Representation of The Peoples (RP) Act, which deals with ‘corrupt practice’, Chief Justice T S Thakur and three others in the 4:3 verdict said it meant the religion and caste of all including voters, candidates and their agents etc.
However, the minority view of three judges - UU Lalit, A K Goel and D Y Chandrachud - held that the term ‘his’ religion means religion of candidate only. The majority view, also shared by Justices M B Lokur, S A Bobde and L N Rao, said ‘secularism’ has to be considered while dealing with such issues.
The apex court had on October 27 reserved its verdict on the “width and scope” of an electoral law provision dealing with the issue whether seeking votes or asking electors not to vote on the ground of “religion, race, caste, community or language”, amounted to “corrupt practice”.
It has been interpreted in an earlier verdict that the term ‘his religion’, used in section 123(3) of the RP Act which deals with ‘corrupt practice’, meant the faith of the candidates only.
Section 123(3) of the RP Act, which is being scrutinised, reads: “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..., for furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate” would amount to corrupt practices.
The bench had said there is freedom to “practice and propagate” the religion, but asked “can it (religion) be used for electoral purposes”.
The bench was hearing a batch of petitions including the one filed by Abhiram Singh whose election as an MLA in 1990 on BJP ticket from Santacruz Assembly seat in Mumbai was set aside by the Bombay High Court.
The apex court in February 2014 had tagged Abhiram Singh’s petition with others in which the five judge bench had decided in 2002 to re-visit its 20-year old ‘Hindutva’ judgement for an authoritative pronouncement on electoral laws by a seven-judge bench.
The issue of interpretation of section 123(3) arose on January 30, 2014 before a five-judge which referred it for examination before a larger bench of seven judges.
A three-judge bench on April 16, 1992 had referred to a five-judge Constitution bench Singh’s appeal in which the same question and interpretation of Section 123(3) was raised.
While the five-judge bench was hearing this matter on January 30, 2014, it was informed that an identical issue was raised in an election petition filed by Narayan Singh against BJP leader Sunderlal Patwa. Another Constitution Bench of five judges of the apex court had referred it to a larger bench of seven judges.
Thereafter, the five-judge bench had referred Singh’s matter also to the Chief Justice for placing it before a seven-judge bench.