Monday, October 3, 2022

Appeal to “enduring ethos of the Constitution”

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Kapil Sibal says that “seminal” issues are at stake in the interpretation of Section 123 (3)

Parsa Venkateshwar Rao Jr

In the ongoing arguments before the seven-judge Constitution Bench of the Supreme Court, led by Chief Justice TS Thakur and comprising Justices MB Lokur, SA Bode, AK Goel, UU Lalit, DY Chandrachud and L Nageswara Rao, there seems to be a tug of war as to how the provision of the Section 123 (3) of the Representation of the People Act, should be interpreted. Section 122 deals with corrupt practices and 122 (3) deals with appeal for votes by a candidate in name of religion, race, caste, community or language.

 While there have been arguments that the section should be interpreted narrowly and literally and by strict sense of the wording of the section, senior lawyer and Congress member of the Rajya Sabha, Kapil Sibal had on Wednesday “beseeched” the court that it should take into consideration “constitutional ethos” and “constitutional values” while interpreting the provision. “Issues raised in this case are seminal,” he said.

In the chapter on Corrupt Practices, Section 123 (3) reads: “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 anthem 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.”

Sibal said that no candidate asks for votes in the name of his religion, but there are indirect ways of doing so. He said that it is possible for an army of Internet volunteers to make an appeal in the name of religion, and it would not be possible to identify those bombarding those messages or even to locate the server which would be facilitating the dissemination of such messages because the server would be located somewhere in the United States.

He said that it will be necessary to reckon with the reality of the political process. He said the reality is that appeals are made in the name of religion, caste and language, but never by the candidate. He argued that it is only the Constitution Bench and the court which could prevent the political discourse from getting drawn into appeals based on religion and caste.

He said, “In an election, the voter is the target. You arouse the passions of the voter. That is what is prohibited. I am not talking about Hindutva.” He said that the appeals in the name of religion and caste et al are “indirect and subtle”.  

He drew the attention of the court to Article 5 of the Constitution which dealt with citizenship. Chief Justice Thakur wanted to know the relevance of the article for the case that is being argued. Sibal explained that Article 5 allowed a person to be given citizenship irrespective of the fact where he was born including the then demarcated territory of Pakistan. He said that Article 6 allowed people who had chosen to migrate to Pakistan in 1947 to apply for citizenship irrespective of their religion, language and caste.

Sibal said that there is need to keep in mind the basic structure of the Constitution. (In the 1973 Kesavananda Bharati case, the Supreme Court by a majority of seven judges to six had said that no amendment to the Constitution can violate what it termed “the basic structure of the Constitution”). Chief Justice Thakur wanted to know whether Sibal was referring to secularism. Sibal said that secularism was not the issue, that secularism was only one of the components of the “enduring ethos of the Constitution”.

He then cited several articles of the Constitution which reflected the ethos of the Constitution, ranging from Articles 5, 6, 7, 15, 16, 17, 25, 26, 28, 29, 30, 46 and 51A. He said that there are overlapping elements in Article 51 A and Section 123 (3).

Lead picture: Supreme Court; Kapil Sibal


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