Madras HC Issues Notice To ECI On Plea Challenging Proviso To S.123(3) Of RP Act Which Gives Immunity To Symbols Allotted By Election Commission

The bench of Acting Chief Justice R Mahadevan and Justice Mohammed Shaffiq issued notice on a plea filed by Advocate ML Ravi.

Section 123 of the Representation of Peoples Act deals with corrupt practices. Sub Section (3) to Section 123 relates to appeal by a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person in 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 prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

Through Act 40 of 1975, a proviso was inserted to Section 123(3) which states: “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 purpose of this clause”. Thus, the proviso gave immunity to the symbols allotted by the Election Commission.

In his plea, Ravi submitted that the proviso was ultra vires and against the Preamble embedded in the Constitution of India. Ravi pointed out that a symbol is religious if it has a religious significance and does not always symbolize God. He gave an example of a case where a symbol of “Elephant” was allotted. He submitted that the symbol “Elephant” was a religious symbol as it depicted the Hindu God Ganapathy and was part of Hindu Religious Mythology. Ravi argued that if this symbol was allotted by the Election Commission, it would not amount to corrupt practice which was arbitrary, discriminatory and defeats the very purpose of enactment of the Act.

The plea stated that the proviso defeats the very purpose of Section 123(3) if the Symbols allotted by the Election Commission do not come under the purview of Religious symbols or national symbols.

Ravi also submitted that the proviso was illegal, unjust, and unconstitutional as it was against Articles 14 and 21 of the Constitution and against the basic structure. He added that the purpose of the Act was to cherish and strengthen democratic ideals. He stated that interpreting the Act in a manner that assisted the candidates in the election instead of the elector or the electorate was against the public interest.

Thus, arguing that the proviso dilutes, contradicts, and defeats the very purpose of the Section and is against the ethos of the Parliament while enacting the law, Ravi sought to declare the proviso as ultra vires, unconstitutional, and illegal and quash the same.

Case Title: ML Ravi v Chief Election Commissioner and Another

Case No: WP 17216 of 2024