An unresolved 1992 case, and a 3rd shot before Constitution bench

A petition pending in India's Supreme Court since 1992 has been referred to a Constitution bench for the third time

New Delhi An election petition pending before the Supreme Court since 1992 earned a unique distinction recently when it got referred for a third time over to a Constitution bench. The larger bench has been called upon to ascertain key aspects of determining “corrupt practice”, as defined under Section 123 of the 1951 Representation of Peoples (RP) Act, when a candidate or his agents make an appeal for vote based on religion, race, caste or community.

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On May 3, a two-judge bench headed by justice Surya Kant traced the journey of the case, starting 1992, and referred it to the Chief Justice of India (CJI) with a request for urgently constituting a five-judge bench. “The civil appeal is of the year 1992, we, therefore, request Hon’ble the Chief Justice of India to constitute the bench at the earliest,” stated the order, citing the advanced age of the petitioner before it and the efflux of time that witnessed a pendency of over three decades in the top court.

The petitioner before the court, Abhiram Singh, was the winning candidate of the 1990 Santacruz assembly seat in Maharashtra from the Bharatiya Janata Party (BJP). His election was set aside by the Bombay high court in December 1991 on a petition filed by his rival contender for the seat, CD Commachen, of the Communist Party of India (Marxist). Singh was blamed for having indulged in corrupt practices by speaking to the voters on grounds of religion. While Singh is over 80 now, Commachen died many years ago.

The case travelled in the past to a five-judge bench in 1996 and to a seven-judge bench in 2014. The seven-judge bench delivered a landmark ruling in January 2017 where the top court, by 4-3, held that appeal for votes on grounds of religion, race, caste or community or language cannot be confined to that of the candidate alone. It declared that the sweep of “corrupt practice” under Section 123(3) and 123(3A) of the Act will include the religion, race, caste, community or language of the voters too.

While the 2017 ruling settled the position of the law, there were still certain procedural issues left unanswered, prompting the two-judge bench to refer the matter yet again to a Constitution bench on May 3.

The genesis of dispute

Election to Santacruz assembly seat was held in February 1990 as part of the Maharashtra state assembly polls. Abhiram Singh, the then vice-president of state BJP unit was declared elected on March 1, 1990 while Commachen, the respondent, finished second. Commachen filed an election petition against Singh alleging that he indulged in “corrupt practice” by employing religion to secure votes of the Hindu community.

The high court allowed Commachen’s plea, noting that evidence left no room for doubt that Singh used “the plank of Hindutva/Hinduism/Hindu”. The high court further held that by appealing for votes in the name of the Hindu community and religion, there was “an attempt to create enmity and hatred between different classes of citizens on the basis of religion, community and caste particularly between Hindus and Muslims”.

Singh appealed against this judgment in 1992, arguing that the findings recorded against him under Sections 123 (3) and 123 (3A) dealing with corrupt practices were accepted by the high court without complying with the requirements under Section 99 of the RP Act. Section 99 provides the procedure to be followed before declaring an election to be void. Further, Singh claimed that the leaders who made the speeches prior to the election did so without his consent and hence, corrupt practices have not been proved.

The law in question

Corrupt practices during elections are grounds to set aside an election. What constitutes a corrupt practice is laid down in Section 123 of the 1951 Act. Section 123(3) states: “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, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate....shall be deemed to be corrupt practices for the purposes of this Act.”

In 1961, subsection 3A was also introduced to Section 123 which further expanded corrupt practices to include “the promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of that candidate or for prejudicially affecting the election of any candidate”.

The order of first reference

After considering Singh’s contentions on the alleged lapses by the high court in complying with the procedural norms, a three-judge bench referred the matter to a five-judge bench in 1996 and formulated three issues.

The reference order of April 16, 1996, stated: “The first question was whether the judge who tried the case is required to record prima facie conclusions on proof of the corrupt practices committed by the (winning) candidate or his agents or collaborators (leaders of the candidate’s political party) or any person on his behalf.”

The second issue, the reference order said, related to whether the consent of the returned candidate is required to be proved, and if so, on what basis and under what circumstances is the consent held as proved. And third, on reaching the conclusion that consent is proved and to prove corrupt practice, whether the notice issued under Section 99(1) of RP Act should contain a “mini judgment” containing the pleadings, evidence and findings on each of the corrupt practices and supply it to the winning candidate for him to show compliance.

The order of second reference

After the 1996 reference order, the case was taken up by a five-judge bench that began hearing the case in 2002. As the hearing progressed, the Constitution bench was informed that a similar petition raising similar issues involving interpretation of Section 124(3) had already been referred to a larger bench of seven judges.

This other case was an election petition filed by Narayan Singh challenging the election of BJP leader Sunderlal Patwa from the Bhojpur assembly constituency in Madhya Pradesh. It was alleged that Patwa committed a corrupt practice as he allegedly made a “systematic appeal on the ground of religion” which attracted Section 123(3) of the RP Act. After the election petition was dismissed by the Madhya Pradesh high court, Narayan approached the top court.

In the Narayan Singh matter, what the court found significant was the use of the word “his” in Section 123(3) and noted that in the light of several past decisions of the top court, there needs clarity on whether the word “his” in the context of appeal for votes on the ground of religion, race, caste, community or language, refers to the candidate or the voter.

Referring the Abhiram Singh case to a seven-judge bench on January 30, 2014, the five-judge bench maintained that since one of the questions involved in the present case was already referred to a larger bench of seven judges, the issue regarding interpretation of 123 (3) of the 1951 Act should also go to the larger bench .

Both these matters were decided by a seven-judge bench on January 2, 2017. The majority verdict in the seven-judge bench gave an expansive interpretation to the word “his” in Section 123(3) to hold that even an appeal on grounds of the voter’s religion, race, caste, community or language will amount to corrupt practice. The dissenting opinion by three judges said that the word “his” should refer to the candidate alone.

The order of third reference

After the 2017 decision, the election appeals were sent back for hearing before the regular bench.

Last month, when the case was taken up, senior advocate Devadutt Kamat who represented the respondent (Commachen), pointed out that besides deciding the scope of what constitutes corrupt practice, the five-judge bench was also required to decide three other issues. The top court agreed that the matter stood referred to seven judges on a limited issue even as the reference order of 1996 made out three issues arising for consideration by a five-judge bench. Senior advocate Arvind P Datar, appearing for Singh, pointed out that his client is over 80.

The court then said that the three questions of law formulated in the 1996 order should be considered by a larger bench of five judges. “We, therefore, direct the Registry to place the case before Hon’ble the Chief Justice of India for constituting a larger Bench of five judges,” said the latest order of reference.