On January 2, 2017, a seven-Judge Bench of the Supreme Court in Abhiram Singh v. CD Commachen (Dead) by LRs. passed a judgment clarifying what would constitute corrupt practice under Section 123 (3A) of the Representative of Peoples’ Act, 1951.

The Constitution Bench headed by former Chief Justice of India Justice TS Thakur after a split verdict ruled by a majority (4:3) that an appeal in the election by candidates in the name of religion, caste, race, community or language would constitute a corrupt practice. This would be sufficient to annul the election leading to the disqualification of the candidate regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of voters.

The judgment came in the wake of a question being referred to the Bench to determine whether the word ‘his’ in Section 123 (3A) of the Representative of Peoples’ Act, 1951 (hereinafter referred as the Act) only meant a bar on appeals made in the name of the candidate or his rival or does it extend to soliciting votes on the basis of the religion, caste, community, race, language of the electorate as a whole.

The judgment clarified the confusion that the presence of the pronoun ‘his’ in the Act is not confined to the religion of the candidate for whom the appeal has been made; ‘his religion’ must be construed as referring to all the categories of persons preceding the word.

If we look at the Constitution, the judgment has in fact re-affirmed the ethos of secularism, the holistic dream which the framers of the Constitution had dreamt of. With more than a billion people in India from diverse religious faiths and belief, religion as an easy tool to seek favour for a candidate has been in vogue. The logic is simple. In a country where symbols are still required for the illiterate voters, vulnerability of falling prey to communal vote bank politics remains easy.

More than a half century has gone by after independence and yet unfortunately in elections, the religion of the candidate, or the opponent or of the voters still plays a crucial factor, at times leading to riots and communal divide making it easy to accumulate votes for a particular party or candidate. The judgment would certainly boost the path of true democracy where ethos of secularism would be stronger and we would have a society with communal harmony.

The court took a holistic view of sub-section (3) of Section 123 of the Act, its amendments during the course of the first 10 years of its enactment, Parliament grappling with the situation of curbing communalism, separatist and fissiparous tendencies during an election campaign and insertion of Section 153A in the Indian Penal Code (IPC) which makes promoting communal hatred a penal offence. Supreme Court took a deep dive into the Act to clarify that even before the amendment of the Act secular values was hidden which is discussed in Para 4 of the judgment as follows:

“What is noteworthy is that Section 123 (3) as it read before the amendment of 1961, did not make any reference to the 'candidate’s religion' or the 'religion of his election agent' or the 'person who was making the appeal with the consent of the candidate or his agent' or even of the ‘voters’ leave alone the 'religion of the opponent' of any such candidate. All that was necessary to establish the commission of a corrupt practice was a systematic appeal by a candidate, his election agent or any other person with the consent of any one of the two, thereby implying that an appeal in the name of religion, race, caste, community or language or the use of symbols referred to in Section 123 (3) was forbidden regardless of whose religion, race, caste, community or language was invoked by the person making the appeal. All that was necessary to prove was that the appeal was systematic and the same was made for the furtherance of the prospects of a candidate’s election.”

The court categorically observed that religion is a personal preference of an individual and the election process which is a secular activity of the state is separate from freedom of religion guaranteed under Article 25 of the Constitution. Section 123 of the Act forbids interference of religions and religious beliefs with secular activity of elections.

Father of the nation Gandhiji and the leaders of freedom struggle preached for brotherhood among different religious groups. Unfortunately, their efforts could not divorce religion from politics and to re-assure that value of secularism amendments in Constitution and legislations were enacted.

The theme of our Constitution is summarised in its preamble. By the 42nd Amendment in 1976 the word ‘secular’ was added in the preamble only to strengthen and emphasise the value of secularism which was already reflected in Article 25 of the Constitution and in the directive principles of state policy (Part – IV). The 42nd Amendment made it explicitly visible that our Constitution was socialistic and secular in nature and that the state does not profess a religion. The same zeal was instrumental in enacting Section 123 of the Act and Section 153A of the IPC.

The minority view of the judgment is nicely crafted which puts emphasis on the strict interpretation of the word ‘his’ in Section 123 of the Act, the word which came as a replacement in place of the word ‘systematic’ after the amendment. It has also taken into consideration the speech of then Law Minister AK Sen. The dissenting view although it held that an appeal for votes on the basis of religion, caste etc. of the candidate would be a corrupt practice under the Act, restricted the interpretation to the religion of the candidates only and not of the voters. It has opined that India being a secular state, the Constitution is not indifferent to issues of religion, caste or language etc. Thus, the statute does not prohibit discussion, debate or dialogue during the course of an election campaign on issues pertaining to religion or on issues of caste, community, race or language.

“…To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction…”

Considering the broad aspect of Constitutional values, the majority view of the judgment seems to be more apt and suitable for the nation. There is no denying that the judgment would have significant impact on upcoming Assembly elections in India and its implementation in true letter and spirit would be a herculean task for the Election Commission. But the judgment has showed the light for a beautiful future.

The writer is an Advocate-on-Record, Supreme Court of India and Life Member, Indian Society of International Law, New Delhi.