New Delhi: A three-judge bench of the Supreme Court today briefly heard a crucial petition against the election of the Congress president Sonia Gandhi as a member of Lok Sabha in 2014 and decided to await the decision of the seven-judge constitution bench, which is currently hearing a bunch of petitions on the legitimacy of mixing religious appeals with the canvassing for votes.
The three-judge bench decided to defer the hearing of the appeal against Gandhi’s election as it wanted to benefit from the wisdom of the seven-judge bench, which would have a bearing on the matter.
The bench, comprising justices Anil R. Dave, R.K. Agrawal and A.M. Khanwilkar, was hearing the appeal filed by Ramesh Singh, an elector in the Rae Bareli Lok Sabha constituency.
Singh’s election petition against Gandhi was previously dismissed by Justice Tarun Agarwala of the Lucknow bench of the Allahabad high court on July 11.
The primary challenge in the petition is to Gandhi’s citizenship status. Singh has challenged the correctness of the grant of citizenship to her, and her entitlement to be registered as a citizen of India. However, since he did not challenge the very order of the central government granting her citizenship, the high court was inclined to presume that the citizenship certificate issued to her was valid.
Besides, the high court found Singh’s pleadings on Gandhi’s citizenship status vague, lacking material facts and, therefore, lacking in merit.
While it is to be seen how Singh answers the infirmities found by the high court on the challenge to Gandhi’s citizenship, his counsel suggested to the bench that the high court’s judgment was “factually incorrect”, and wanted the bench to hear the matter, irrespective of the seven-judge bench’s decision on the other issue.
While agreeing with the counsel that the high court’s judgment needed to be reviewed in the appeal, the bench suggested that since the seven-judge bench is already seized of the other issue, it would save time and effort if the hearing is deferred till the decision of the seven-judge bench. The bench also suggested that the petitioner will have the opportunity to request for an early hearing if there is an inordinate delay in hearing it.
In his petition, Singh alleges that Gandhi is guilty of violating Section 123 (3) of the Representation of the Peoples Act, 1951 – the very provision that is being interpreted by the seven-judge constitution bench of the Supreme Court since October 18. The arguments in the case are likely to be concluded.
Singh has alleged that Gandhi committed corrupt practice by making an appeal for votes on the grounds of religion. He has alleged that as per a television news broadcast on April 1, 2014, a meeting took place between her and Syed Ahmed Bukhari, the Shahi Imam of Jama Masjid in New Delhi, wherein Bukhari claimed that Gandhi had requested him to endeavour and ensure that Muslim votes should not split in the Lok Sabha election.
Citing another television news report that aired on May 4, 2014, Singh claims that Bukhari declared his support to the Congress party in a press conference on the basis of his meeting with Gandhi the month before.
According to Section 123(3) of the Representation of the Peoples Act,
“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 [emphasis supplied by us] 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.”
Gandhi’s counsel had argued before the Allahabad high court that this provision makes clear that the appeal for votes must be on the ground of the religion of the candidate. As in this case, Gandhi’s religion is different from the religion appealed to by Bukhari on her behalf for the purpose of her election, her counsel had argued that Section 123(3) could not be applied.
The high court accepted Gandhi’s contention that there was no assertion of appeal to vote in the name of “her” religion. (The word “his” could be understood as “her” depending on the context, in terms of the General Clauses Act).
In Dr. Ramesh Yeswant Prabhoo v Prabhakar Kashinath Kunte and others, the Supreme Court held that the word “his”, as specified in Section 123(3) of the Representation of the Peoples Act, is of importance and it means that the religion forming the basis of appeal to vote or refrain from voting for any person must be of that candidate for whom the appeal to vote or refrain from voting is made.
When Singh pointed out to the high court that the interpretation of Section 123(3) of the Act has been referred to a larger bench, the court held that so long as the Supreme Court’s decision by a smaller bench in Dr. Ramesh Yeshwant Prabhoo is not reversed, it is binding on the high court and would apply with equal force.
Reports on the hearing by the seven-judge constitution bench of the Supreme Court indicate that it is hearing the submissions by the counsel on this precise issue.
Justice D.Y. Chandrachud, one of the seven judges on the bench, was of the opinion that if “his religion” in Section 123(3) referred only to the candidate’s religion, then the last part of the provision, which specifies “for the furtherance of the prospects of the election of that candidate” is rendered redundant. Justice Chandrachud stated that the last part was added to clarify that any third person appealing for votes on the basis of a religion other than that of the candidate’s religion in order to further the prospects of the candidate would be covered under Section 123(3).
Senior counsel Anoop Chaudhary, appearing for one of the appellants in the case, argued for a wider interpretation of Section 123(3). According to him “his” would qualify the candidate, his agent, any other person with the candidate’s consent, his election agent and the voter. He stressed on the placement of the word “his” and submitted that the positioning was a deliberate attempt at widening the meaning of the section. He further argued that voter’s religion has to be read into the section as it is the voter who casts the vote and the appeal is directed at him.
Chaudhary’s second submission was with regards to the Hindi version of Section 123(3) where the word “his” has been omitted. Hence, it was contended by Chaudhury that such omission shows legislative intent to give the provision a wider meaning. He submitted that for the correct interpretation of the provision, it is imperative to consider two questions – what mischief is sought to be prevented and what will result in mischief. He also submitted that any kind of mental or emotional pressure on the voter on the basis of religion, caste and the like will defeat the entire purpose of the mischief sought to be prevented.
Chief Justice T.S.Thakur, who presides over the seven-judge bench, has opined that the provision should be interpreted in the secular background of the country and therefore the best form of interpretation is the textual and contextual interpretation.
In view of the conflicting interpretations of Section 123(3) of the Act and the meaning of the word “his” in the provision, it is likely that the outcome of the petition against Gandhi’s election may well hinge on the outcome of the bunch of petitions being heard by the seven-judge bench.
(The Wire, for the purpose of this story, has borrowed the summary of hearings before the seven-judge constitution bench prepared by the Centre for Communication Governance of the National Law University, New Delhi, and posted on the website Legally India.)