November 03, 2016

India: Electoral malpractices and “Hindutva” in the Supreme Court: Who argued what? [Bar & Bench November 2, 2016]

Bar & Bench November 2, 2016

Electoral malpractices and “Hindutva” in the Supreme Court: Who argued what? [Updated]

Vasudha Misra & Murali Krishnan

For two weeks, a seven-judge Bench of the Supreme Court of India has been hearing a keenly contested case relating to malpractices under the Representation of People Act of 1951. This has been popularly termed as a review of the “Hindutva case”, although the reality is far different.

The genesis of the case lies in the 1990 Assembly elections to the Maharashtra State Legislative Assembly. The appellant Abhiram Singh, a candidate of the BJP, was elected from Santa Cruz constituency. The respondent, a candidate of the Congress party came in second. It led to an election petition alleging that the appellant had appealed for votes on the basis of Hindu religion. The election petition was allowed by the Bombay High Court in 1991.

The High Court held that,

“the voluminous oral as well as documentary evidence leaves no room for doubt that the plank of Hindutva/Hinduism/Hindu was used……it is clear from the voluminous material on record that the campaign was on the basis of appealing for votes on the basis of 1st Respondent’s community and religion, i.e., the Hindu community and religion and that there was an attempt to create enmity and hatred between different classes of citizens on the basis of religion, community and caste particularly between the Hindus and Muslims.”

Singh went to the Supreme Court in appeal; his primary argument was that requirements of notice and opportunity under Section 99 of the Act was not complied with. Another issue for consideration was whether the appellant could be held liable for speeches made without his consent by other party members.

On April 16, 1996, a Bench of Justices K Ramaswamy, SP Bharucha and KS Paripoornan referred the matter to a Constitution Bench after framing the following three questions:

[i] whether the learned Judge who tried the case is required to record prima facie conclusions on proof of the corrupt practices committed by the returned candidate or his agents or collaborators [leaders of the political party under whose banner the returned candidate contested the election] or any other person on his behalf?

[ii] whether the consent of the returned candidate is required to be proved and if so, on what basis and under what circumstances the consent is held proved?

[iii] on reaching the conclusion that consent is proved and prima facie corrupt practices are proved, whether the notice under Section 99(1) proviso (a) should contain, like mini judgment, extraction of pleadings of corrupt practices under Section 123, the evidence – oral and documentary and findings on each of the corrupt practices by each of the collaborators, if there are more than one, and supply them to all of them for giving an opportunity to be complied with?

On January 30, 2014, a 5-judge Bench referred the case to a 7-judge Bench stating that one of the questions involved in the matter had already been referred to a 7-judge Bench in another case. Despite this, it took more than two years to constitute the 7-judge Bench to hear the case. When the notification setting up the bench was published on the Supreme Court website, it generated considerable media interest as it was speculated that the court would reconsider the 1995 judgment regarding the definition and scope of Hindutva.

However, the terms of reference did not spell out any issues regarding the meaning of Hindutva, but only dealt with the larger issue of corrupt practices.

Chief Justice TS Thakur confirmed the same when he said that the court won’t revisit the definition of Hindutva as it was not part of the reference order.

“We are not going into the larger debate as to what is Hindutva. We will not reconsider the 1995 judgment. We will confine ourselves’ as to what amounted to misuse of religion, caste, race or language for wooing the electorate in violation of the ban under Section 123(3) of the Representation of People Act 1951″, the bench said.

The hearing in Supreme Court over the course of two weeks saw a number of prominent Senior Advocates making their submissions in the matter. On October 27, judgment was reserved. Given the fact that elections in Uttar Pradesh, and Punjab are scheduled to take place soon, the final verdict in the matter could play a significant role.

Here below are the arguments by some of the Senior Counsel.

1. Arvind Datar

The Bombay High Court should have complied with the mandatory procedure provided in the proviso to Section 99(1)(a).
The question regarding the returned candidate being guilty of corrupt practice can be decided only at the end of the trial after an enquiry against the other person is concluded by issuing them notices under Section 99. Accordingly, the trial under Sections 98 and 99 has to be a composite trial.
Sections 98 and 99 have to be interpreted to mean that notice to a third party can be issued only during trial and not at the conclusion of the trial.
On a conjoint reading of Sections 98, 99 and 123(3A), it is clear that there are only three categories of persons who can be named i.e. the candidate, his agent or any other person who has indulged in corrupt practices with the consent of the candidate.

2. Shyam Divan

Argued for a strict/literal interpretation of “his religion” under Section 123(3A) to balance free speech interests.
The correct approach towards interpreting the provision is to look at the language as was done in the Ramesh Yeshwant Prabhoo case, read the provision strictly or literally and interpret it to mean the religion of the candidate only.
It is not desirable for the courts to revisit its earlier judgments when there is a long standing precedent and no compulsive reasons to do so. Relied on The Keshav Mills Co. Ltd vs Commissioner Of Income-Tax and Jindal Stainless Ltd.& Anr v. State Of Haryana & Ors.

3. Anoop Chaudhary

The word ‘his’ under Section 123(3A) would mean the candidate, his agent, any other person with the candidate’s consent, his election agent and the voter.
Garnering votes in the name of religion would directly affect the secular fabric of the country.
No one should be allowed to make an appeal in the name of religion. Any such emotive appeal will take away the independent choice of vote. That is why it has become a corrupt practice. Parties can get over this easily if everybody is asking for votes in the name of religion.

4. BA Desai

Proceedings under Sections 98 and 99 are two independent and separate proceedings and are civil in nature, not criminal or quasi-criminal.
Section 98 is mainly concerned with the determination of the validity of a candidate’s election and Section 99 is an exercise of the sovereign authority of the High Court to maintain the purity of elections.
Any reference has to be a mix of facts and law. Here, the entire appeal has been referred to this bench. The “plank of Hindutva, Hindu and Hinduism” are part of the reference and falls within the scope of section 123 (3) of the RP Act.

5. Indira Jaising

The term “his religion” needs to be given “broad and wide” interpretation and the Hindutva judgement needs to be re-visited.
Issue as to whether a person has appealed for votes in the name of religion should be interpreted afresh and section 123(3) of the Act should be read together with other sub-sections of the provision.

6. Sanjay Hegde

What is prohibited under Section 123 (3) is not a narrow bar on appeals in political speeches in the name of candidates or their agents, but the real intent of Section 123 (3) is to “prohibit an appeal on sectarian grounds ”.

7. Salman Khurshid

Referred to various provisions of the RP Act dealing with powers of courts to pass orders in the event of a petition alleging “corrupt practice” in an election.
That one must separate proceedings under S.98 and S.99, and that “proceedings under Section 99 should be resorted to only for the purposes of naming third parties.” [CCG NLU Delhi]

9. ASG Tushar Mehta (States of Rajasthan, Gujarat and Madhya Pradesh)

Agendas and manifestos are better left to political parties unless there is something startling in them, in which case the courts may intervene.

10. Kapil Sibal

In an election, it is the voters who are targeted. [CCG NLU Delhi]
Hence, the term — “his religion” — in the provision should not remain confined to the candidates only but should include the faith of the electors as well. [FirstPost]

Politicians have become hardened and learnt the art of garnering votes on the basis of religion and caste and this practice should must stop.[TimesNow]

11. KTS Tulsi (Speaking to the media)

Supreme Court must see the contradiction. After all Hindu religion and Hinduism cannot be two separate things.
Every religion is a way of life, if Hinduism is a way of life, is Sikkhisim not a way of life, is Christianity not a way of life? Every religion prescribes the code of conduct as your way of life; and to say that Sikh is different from Sikhism is semantics.
The concept of secularism in the electoral politics needs to be strengthened and protected. [ANI]

Corrigendum: An earlier version of this piece incorrectly identified Mr. BA Desai as Mr. Ashok Desai. Also, senior counsel KTS Tulsi was wrongly stated to be one of the counsel in this case. The errors are deeply regretted. We would also like to thank advocate Udayaditya Banerjee for pointing out the errors.