1
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A No. 14 OF 2016
In
CIVIL APPEAL NO. 37 OF 1992
IN THE MATTER OF :
Abhiram Singh ...... APPELLANT
VERSUS
C.D. Commachen through LRs & Ors...... RESPONDENTS
AND
IN THE MATTER OF :
Teesta Setalvad & Ors. …..INTERVENORS
WRITTEN SUBMISSIONSON BEHALF OF INTERVENORS BY
SR. ADV. INDIRA JAISING
INDEX
Sr. / Particulars / PageI. / SECULARISM IN THE CONTEXT OF ELECTIONS& IMPACT ON S.123 RPA, 1951 / 3
II. / PURPOSE OF CONTESTING ELECTIONS / 13
III. / INTERPRETATION S.123 (3) & (3A) RPA, 1951
III.A.Section 123 to be read as a whole
III.B Interpretation of “his religion”
III.C. When can it be said an appeal is made “on ground of religion, race, caste, language, or community”
C.1 Legitimate Use
C.2 Illegitimate Use / 17
IV. / WHETHER CONTESTING ON A TICKET OF THE PARTY WHICH HAS ISSUED A MANIFESTO AMOUNTS TO CONSENT TO THE CONTENTS OF THE MANIFESTO / 41
V. / WHAT IS HINDUTVA OBITER IN PRABHOO CASE / 42
VI. / REFERENCE TO BENCH OF FIVE JUDGES- Terms of Reference proposed / 49
WRITTEN SUBMISSIONSON BEHALF OF INTERVENOR BY
SR. ADV. INDIRA JAISING
I. SECULARISM IN THE CONTEXT OF ELECTIONS & IMPACT ON S.123 RPA, 1951
1. It is submitted that Section 123 of the Representation of People’s Act, 1951 (RPA, 1951) must be interpreted in context of secualrism being a basic feature of the Indian constitution, so that political parties and their candidates keep considerations of religion race caste language away from elections.
2. It is submitted that secularism separates religion form State and ensures that all citizens are treated equally and that they are not discriminated on the ground of the religion, race, caste, or langauge or community, to which they belong the Preamble to the Indian Constitution and fundamental rights guaranteed in the Indian Constitution ensure that the State has no religion and that all political parties and their candidates are expected to bare true faith and allegiance to the Constitution itself.
3. The Indian Preamble reads as:
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a 1[SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation];
IN OUR CONSTITUENT ASSEMBLY this twenty- sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”
4. Although the fundamental right to religion is guaranteed to citizens, the Constitution ensures that religion operates in its own realm and not in the realm of the secular, including politics and in the formation of political parties.
5. This Hon’ble Court in Ziyauddin Barhanuddin Bukhari v. Brijmohan Ramdass Mehra [(1976) 2 SCC 17] (ZB Bukhari case) distinguished secular and religious activities, the former being political and latter being personal, as follows in Paras. 42-45:
“If all human activity in this world could be labelled "secular", on the ground that it appertains to "this world" as against "the other world", all religious thought and activity could be described as "secular", as it takes place in this world. But, the term it not used so broadly. It is a convenient label to distinguish all that is done in this world without seeking the intervention or favour of or propitiating a Superhuman or Divine Power or Being from that which is done professedly to please or to carry out the will of the Divinity. Secularism, in the realm of Philosophy, is a system of Utilitarian ethics, seeking to maximize human happiness or welfare quite independently of what may be either religious or the occult. …Modern man, with his greater range of scientific knowledge and better understanding of his own needs as well as of the nature of the universe, attempts to confine religion to its proper sphere-that where he reaches a satisfying relationship between himself and the Divinity he believes in so as to get an inner strength and solace which enable him to overcome psychological crises or fears when confronted with disturbing or disrupting events, such as a Death, or their prospects. He does not permit his religion, which should be essentially his individual affair, to invade what are properly the spheres of law, politics, ethics, aesthetics, economics and technology, even where its administration is institutionalized and it operates as a social force. The Secular State, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and creeds. Maitland had pointed out that such a state has to ensure, through its laws, that the existence or exercise of a political or civil right or the right or capacity to occupy any office or position under it or to perform any public duty connected with it does not depend upon the profession or practise of any particular religion. Therefore, candidates at an election to a legislature, which is a part of "the State", cannot be allowed to tell electors that their rivals are unfit to act as their representatives on grounds of their religious professions or practices. To permit such propaganda would be not merely to permit undignified personal attacks on candidates concerned but also to allow assaults on what sustains the basic structure of our Democratic State. Our Constitution and the laws framed thereunder leave citizens free to work out happy and harmonious relationships between their religions and the quite separable secular fields of law and politics. Bill, they do not permit an unjustifiable invasion of what belongs to one sphere by what appertains really to another. It is for Courts to determine, in a case of dispute, whether any sphere was or was not properly interfered with, in accordance with the Constitution, even by a purported law.”
6. This Hon’ble Court in Keshavananda Bharati v. State of Kerala [( 1973 ) 4 SCC 225] as per S.M. Sikri C.J., held that secularism is part of the basic structure of the Constitution in the following Paras.282-283, 292:
“…It seems also to have been a common understanding that the fundamental features of the Constitution, namely, secularism, democracy and the freedom of the individual would always subsist in the welfare state.”
“The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government.
(3) Secular character of the Constitution;
(4) Separation of powers between the Legislature, the executive and the judiciary;
(5) Federal character of the Constitution.”
7. Further this Hon’ble Court in S. R. Bommai v. Union of India [(1994) 3 SCC 1] (Bommai case) as per Sawant, J.held in Para. 145 that the right to religion is subject to laws governing secular activities such as the law governing politics and that the Indian State is secular state and not a theocratic State in the following words:
“Our Constitution does not prohibit the practice of any religion either privately or publicly. Through the Preamble of the Constitution, the people of this country have solemnly resolved to constitute this country, among others, into a secular republic and to secure to all its citizens…Article25of the Constitution guarantees to all persons equally the freedom of conscience and the right freely to profess, practice and propagate religion subject to public order, morality and health and subject to the other Fundamental Rights and the State's power to make any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. Article26guarantees every religious denomination or any section thereof the right [a] to establish and maintain institutions for religious and charitable purposes, [b] to manage its own affairs in matters of religion, [c] to own and acquire movable and immovable property and [d] to administer such property in accordance with law. Article29guarantees every section of the citizens its distinct culture, among others. Article30provides that all minorities based on religion shall have the right to establish and administer educational institutions of their choice. It prohibits the State from making any discrimination in granting aid to an educational institution managed by a religious minority. Under Articles14,15and16, the Constitution prohibits discrimination against any citizen on the ground of his religion and guarantees equal protection of law and equal opportunity of public employment. Article44enjoins upon the State to endeavour to secure to its citizens a uniform civil code. Article51Acasts a duty on every citizen of India, among others, [a] to abide by the Constitution and respect its ideals and institutions, [b] to promote harmony and the spirit of common brotherhood, among all the people of India, transcending, among others, religious and sectional diversities, [c] to value and preserve the rich heritage of our composite culture, [d] to develop scientific temper, humanism and the spirit of inquiry and reform; and [e] to safeguard public property and to abjure violence.These provisions by implication prohibit the establishment of a theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination. The State is enjoined to accord equal treatment to all religions and religious sects and denominations.”
8. The Nine Member Constitutional Bench in Bommai case deliberated at length on the interpretation of Section 123 of the RPA, 1951. These Paragraphs are of relevance. They are being reproduced:
S R Bommai (Supra) at Para 149:
With respect, we are unable to accept this contention. Reading sub-sections (3) and (3A) of Sections 123 together, it is clear that appealing to any religion or seeking votes in the name of any religion is prohibited by the two provisions. To read otherwise is to subvert the intent and purpose of the said provisions. What is more, assuming that the interpretation placed by the learned counsel is correct, it cannot control the content of secularism which is accepted by and is implicit in our Constitution.”(this means that the Corrupt practice is not confined to an appeal to the religion of the candidate but to any religion ) (question can we argue that the word “his” refers to the religion of the voter or can the word “his “refer to “his agent “or his party manisfesto )
S R Bommai (Supra) at Para 187:
“Politics in positively secular State is to get over their religion, in other words, in politics a political party should neither invoke religion nor be dependent on it for support or sustenance. Constitution ensures to the individual to protect religion, right to belief of propagate teachings conducive for secular living, later to be controlled by the State for betterment of human life and progress. Positive secularism concerns with such aspects of human life.”
S R Bommai (Supra) at Para 190:
“Article 25 inhibits the Government to patronise a particular religion as State religion overtly or covertly. Political party is, therefore, positively enjoined to maintain neutrality in religious beliefs and prohibit practices derogatory to the Constitution and the laws. Introduction of religion into politics is not merely a negation of the constitutional mandates but also positive violation of the constitution obligation, duty, responsibility and positive prescription of prohibition specifically enjoyed by the Constitution and the R P Act. A political party that seeks to secure power through a religious policy or caste orientation policy disintegrates the people on grounds of religion and caste. It divides the people and disrupts the social structure on grounds of religion and caste which is obnoxious and anathema to the constitutional culture and basic features. Appeal on grounds of religion offends secular democracy.”
9. In other words, it should have been clear to anyone that under our Constitution, there shall be no religion in politics just as there shall be no politics in religion.
S R Bommai (Supra) at Para 196:
“In a secular democracy, in other words a flagrant breach of constitutional features of secular democracy. It is, therefore, imperative that the religion and caste should not be introduced into politics by any political party, association or an individual and it is imperative to prevent religious and caste pollution of politics”. A religious talk, may be a dissertation or a discourse or even hoping for a religious State, on the basis of any so-called exercise of fundamental right u/Article 25, in an election meeting which is a political activity, would undoubtedly pollute politics, and can only be construed as an appeal to vote on the basis of religion.
10. Referring to S. 123 (3) & (3A) of the Act, the Court in S R Bommai (Supra) at Para 189 said:
“A political party, therefore, should not ignore the fundamental features of the Constitution and the laws. Even its manifesto with all sophistication or felicity of its language, a political party cannot escape constitutional mandate and negates the abiding faith and solemn responsibility and duty undertaken to uphold the Constitution and laws after it was registered under Section 29-A. Equally it / they / should not sabotage the same basic features of the Constitution either influencing the electoral process or working the Constitution or the law. The political party or the political executive securing the governance of the State by securing majority in the legislature through the battle of ballot throughout its tenure by its actions and programmes, it is required to abide by the Constitution and the laws in letter and spirit”.
S R Bommai (Supra) at Para 252:
“Political parties, group of persons or individuals who would seek to influence electoral process with a view to come to political power, should abide by the Constitution and the laws including secularism, sovereignty, integrity of the nation. They / he should not mix religion with politics. Religious tolerance and fraternity are basic features and postulates of the Constitution as a scheme for national integration and sectional or religious unity. Programmes or principles evolved by political parties based on religion amounts to recognizing religion as a part of the political governance which the Constitution expressly prohibited. It violates the basic features of the Constitution.”