Identity politics, elections and the Representation of the People Act, 1951

The Daily Guardian

In 2017, a seven-Judge Bench of the Hon’ble Supreme Court of India in Abhiram Singh vs C.D. Commachen (Dead) By Lrs.& Ors delivered a judgement on Section 123(3) of the Representation of the People Act, 1951. The limited issue which the Supreme Court was called upon to decide was whether the language of Section 123(3) of the Representation of the People Act, 1951 allowed for an expansive reading of corrupt electoral practices proscribed by the provision so as to prohibit any and all reference to religion as part of an election campaign. To understand the issue better, let’s take a look at sub-Sections (3) and (3A) of Section 123, both of which are relevant to the discussion:

123. Corrupt practices—The following shall be deemed to be corrupt practices for the purposes of this Act:

(3) 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

Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.

(3A) 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 the election of that candidate or for prejudicially affecting the election of any candidate.

In a nutshell, the discussion in the judgement revolved around the interpretation of the underscored pronoun “his” in sub-section (3). The minority view in the judgement was that “his” had to be given its due based on the plain and express language of the provision. In practice, this would mean that the bar under the provision is limited to an appeal made to voters in an election by a candidate (including his agent or any other person making the appeal with the candidate’s or the agent’s consent) on the ground of his (candidate’s) own religion or the religion of a rival candidate.

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