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Tuesday, January 10, 2017

expression “his” in Section 123(3)=The Representation of the People Act, 1951 has undergone several parliamentary amendments. Parliament would be aware of the interpretation which has been placed by this Court on the provisions of Section 123(3). Despite this, the provision has remained untouched though several others have undergone a change. In the meantime, elections have been held successfully, governments have changed and majorities have been altered in the house of Indian democracy. There is merit in ensuring a continuity of judicial precedent. The interpretation which has earlier been placed on Section 123(3) is correct and certainly does not suffer from manifest error. Nor has it been productive of public mischief. No form of government is perfect. The actual unfolding of democracy and the working of a democratic constitution may suffer from imperfections. But these imperfections cannot be attended to by an exercise of judicial redrafting of a legislative provision. Hence, we hold that there is no necessity for this Court to take a view at variance with what has been laid down. The ‘his’ in Section 123(3) does not refer to the religion, race, caste, community or language of the voter. ‘His’ is to be read as referring to the religion, race, caste, community or language of the candidate in whose favour a vote is sought or that of another candidate against whom there is an appeal to refrain from voting.



                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO. 37 OF 1992


ABHIRAM                                                                SINGH
.…APPELLANT
                                 VERSUS

C.D. COMMACHEN (DEAD) BY LRS. & ORS.                 .…RESPONDENTS

                                    WITH

                       CIVIL APPEAL NO. 8339  OF 1995


NARAYAN SINGH                                         ….APPELLANT
                                   VERSUS

SUNDERLAL                   PATWA                   &                   ORS.
….RESPONDENTS







                               J U D G M E N T



Madan B. Lokur, J.


1.    The foundation for this reference relating to  the  interpretation  of
Section 123(3) of the Representation of the People Act, 1951 to a  Bench  of
seven judges has its origins in three decisions of this Court.
2.    In Abhiram Singh v. C.D. Commachen[1] the election in 1990 of  Abhiram
Singh to the No. 40, Santa Cruz Legislative Assembly  Constituency  for  the
Maharashtra State Assembly was successfully challenged by Commachen  in  the
Bombay High Court. While hearing the appeal  against  the  decision  of  the
Bombay High Court, a Bench of three learned Judges expressed the  view  that
the content, scope and  what  constitutes  a  corrupt  practice  under  sub-
sections (3) or (3A) of Section 123 of  the  Representation  of  the  People
Act, 1951 (for short, ‘the Act’) needs to  be  clearly  and  authoritatively
laid down to  avoid  a  miscarriage  of  justice  in  interpreting  ‘corrupt
practice’.  The Bench was of opinion that the appeal requires  to  be  heard
and decided by a larger  Bench  of  five  Judges  of  this  Court  on  three
specific questions of law.
3.    In Narayan Singh v.  Sunderlal  Patwa[2]  the  election  of  Sunderlal
Patwa from the Bhojpur  Constituency  No.  245  in  Madhya  Pradesh  to  the
Legislative Assembly in 1993 was under challenge on the ground of a  corrupt
practice in that the returned candidate  had  allegedly  made  a  systematic
appeal on the ground of religion in violation of Section 123(3) of the  Act.
The election petition was  dismissed.  In  appeal  before  this  Court,  the
Constitution  Bench  noticed  an  anomalous  situation  arising  out  of  an
amendment to Section 123(3) of the Act in 1961 inasmuch as it appeared  that
a corrupt practice for the purposes of the Act prior to the amendment  could
cease to be a corrupt practice after the amendment.  On  the  one  hand  the
deletion of certain words[3] from the sub-section widened the scope  of  the
sub-section while the addition of  a  word[4]  seemingly  had  the  opposite
effect. Since there are certain other significant observations made  in  the
order passed by the Constitution Bench, it  would  be  more  appropriate  to
quote the relevant text of the Order.  This is what the  Constitution  Bench
had to say:
“In this appeal the interpretation of sub-section (3) of Section 123 of  the
Representation of the People Act, 1951  (hereinafter  referred  to  as  “the
Act”) as amended by Act 40 of 1961, has  come  up  for  consideration.  This
case had been tagged on to another case in the  case  of  Abhiram  Singh  v.
C.D. Commachen[5].  Abhiram  Singh  case  has  been  disposed  of  as  being
infructuous.[6] The High  Court  in  the  present  case  has  construed  the
provision of sub-section (3) of Section 123 of the Act to mean that it  will
not be a corrupt practice when the voters belonging to some  other  religion
are appealed, other than the religion of the  candidate.  This  construction
gains support from a three-Judge Bench  decision  of  this  Court  in  Kanti
Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel[7]  as  well  as
the subsequent decision of this Court in Ramesh  Yeshwant  Prabhoo  (Dr)  v.
Prabhakar Kashinath Kunte[8]. In the later decision the speech  of  the  Law
Minister  has  been  copiously  referred  to  for  giving  the  provision  a
restrictive  construction  in  the  sense  that  the  word  “his”  has  been
purposely used and, therefore, so long as the candidate’s  religion  is  not
taken recourse to, it would not be a “corrupt practice” within  the  meaning
of Section 123(3). There are certain observations in the Constitution  Bench
decision of this Court in the case of  Kultar  Singh  v.  Mukhtiar  Singh[9]
while noticing the provisions of  Section  123(3)  of  the  Act.  There  are
certain observations in  Bommai  case[10],  where  this  provision  did  not
directly came up for consideration, which  run  contrary  to  the  aforesaid
three-Judge Bench decisions of this Court. The very object of  amendment  in
introducing Act 40 of 1961 was  for  curbing  the  communal  and  separatist
tendency in  the  country  and  to  widen  the  scope  of  corrupt  practice
mentioned in sub-section (3) of Section 123 of the Act.

As it appears, under the amended provision, the  words  “systematic  appeal”
in the pre-amended provision were given a go-by  and  necessarily  therefore
the scope has been widened  but  by  introducing  the  word  “his”  and  the
interpretation given to the aforesaid provision in  the  judgments  referred
earlier, would give it a restrictive meaning. In other  words,  while  under
the pre-amended provision it would be a corrupt  practice,  if  appealed  by
the candidate, or his agent or any other person  to  vote  or  refrain  from
voting on the grounds of caste, race, community or religion,  it  would  not
be so under the amended provision so long as the candidate does  not  appeal
to the voters on the ground of his religion even though he appealed  to  the
voters on the ground of religion of voters. In view of certain  observations
made in the Constitution Bench decision of this Court in Kultar  Singh  case
we think it appropriate to refer the matter  to  a  larger  Bench  of  seven
Judges to consider the matter. The  matter  be  placed  before  Hon’ble  the
Chief Justice for constitution of the Bench.”



4.    Thereafter, when Abhiram Singh was taken up for consideration  by  the
Constitution Bench, an order was made[11] that “since one of  the  questions
involved in the present appeal is already referred  to  a  larger  Bench  of
seven Judges,[12] we think it appropriate to refer this appeal to a  limited
extent regarding interpretation of sub-section (3) of  Section  123  of  the
1951  Act  to  a  larger  Bench  of  seven  Judges.”  It  is   under   these
circumstances that these appeals are before us on a limited question of  the
interpretation of sub-section (3) of Section 123 of the Act.

5.    Before getting into the meat of the matter, it might be worthwhile  to
appreciate the apparent cause of conflict in views.

Apparent cause of conflict

6.    Among the first few cases decided by this Court on Section  123(3)  of
the Act was that of  Jagdev Singh Sidhanti v. Pratap Singh  Daulta[13].   In
this case, the Constitution Bench held that an appeal to the  electorate  on
a ground personal to the candidate relating to  his  language  attracts  the
prohibition of a corrupt  practice  under  Section  100  read  with  Section
123(3)  of  the  Act.   It  was  also  held  that  espousing  the  cause  of
conservation of a language was not prohibited by Section 123(3) of the  Act.
In that context, it was held:
“The corrupt practice defined by clause (3)  of  Section  123  is  committed
when an appeal is made either to vote or refrain from voting on  the  ground
of a candidate’s language. It is the appeal to the electorate  on  a  ground
personal to the candidate relating to his language which  attracts  the  ban
of Section 100 read with Section l23(3).  Therefore  it  is  only  when  the
electors are asked to  vote  or  not  to  vote  because  of  the  particular
language of the candidate that a  corrupt  practice  may  be  deemed  to  be
committed. Where, however for conservation of  language  of  the  electorate
appeals are made to the electorate and promises are given that  steps  would
be taken to conserve  that  language,  it  will  not  amount  to  a  corrupt
practice.”[Emphasis supplied by us].



7.    In Kultar Singh the  Constitution  Bench  made  a  reference  to  sub-
section  (3)  of  Section  123  of  the  Act  in  rather  broad  terms.  The
Constitution Bench read into Section 123(3) of the  Act  the  concept  of  a
secular democracy and  the  purity  of  elections  which  must  be  free  of
unhealthy practices. It was said:

“The  corrupt  practice  as  prescribed  by   Section   123(3)   undoubtedly
constitutes a very healthy and  salutary  provision  which  is  intended  to
serve the cause of secular democracy in this  country.  In  order  that  the
democratic process should thrive and succeed, it  is  of  utmost  importance
that our elections to Parliament and the different legislative  bodies  must
be free from the unhealthy influence of appeals to  religion,  race,  caste,
community, or language. If these  considerations  are  allowed  any  way  in
election campaigns, they would vitiate the secular atmosphere of  democratic
life, and so, Section 123(3) wisely provides a  check  on  this  undesirable
development by providing that an appeal to any  of  these  factors  made  in
furtherance of the candidature of any candidate as therein prescribed  would
constitute a corrupt practice and would render  the  election  of  the  said
candidate void.” [Emphasis supplied by us].



It is quite clear from a reading of the above passages that the  concern  of
Parliament in enacting Section 123(3) of the Act was to provide a  check  on
the  “undesirable  development”  of  appeals  to  religion,   race,   caste,
community or language of any candidate. Therefore, to maintain the  sanctity
of the democratic process and to avoid vitiating the secular  atmosphere  of
democratic life, an appeal to any of the factors would void the election  of
the candidate committing the corrupt practice. However,  it  must  be  noted
that Kultar Singh  made  no  reference  to  the  decision  in  Jagdev  Singh
Sidhanti.
8.    A few years later, Section  123(3)  of  the  Act  again  came  up  for
consideration – this time in Kanti Prasad Jayshanker Yagnik. This  provision
was given a narrow and restricted interpretation and its sweep  was  limited
to an appeal on the ground of the religion of the  candidate.  It  was  held
that:
“One other ground given by the High Court is that “there  can  be  no  doubt
that in this passage (passage 3) Shambhu Maharaj had put forward  an  appeal
to the electors not to vote for the  Congress  Party  in  the  name  of  the
religion.” In our opinion, there is no bar to a candidate or his  supporters
appealing to the electors not to vote  for  the  Congress  in  the  name  of
religion. What Section 123(3) bars is that an appeal by a candidate  or  his
agent or any other person with the consent of the candidate or his  election
agent to vote or refrain from voting for any person on  the  ground  of  his
religion i.e. the religion of the candidate.” [Emphasis supplied by us].


9.    Significantly, this decision did not make any reference to the  narrow
interpretation given to Section 123(3) of the Act in Jagdev  Singh  Sidhanti
or to broad interpretation given to the same provision  in  Kultar  Singh  a
few years earlier.
10.   As mentioned in the reference order, the issue of  the  interpretation
of Section 123(3) of the Act came up for indirect  consideration  in  Bommai
but we need not refer to that decision since apart from the  view  expressed
in the reference order, this Court had taken the  view  in  Mohd.  Aslam  v.
Union of India[14] that “…… the decision of this Court  in  S.R.  Bommai  v.
Union of India, did not relate to the construction of, and determination  of
the  scope  of  sub-sections  (3)  and  (3-A)  of   Section   123   of   the
Representation of the People  Act,  1951  and,  therefore,  nothing  in  the
decision in Bommai is of assistance for construing the meaning and scope  of
sub-sections (3) and (3-A) of Section  123  of  the  Representation  of  the
People Act. Reference to the decision in Bommai  is,  therefore,  inapposite
in this context.” However, it must be noted that Bommai made it  clear  that
secularism mentioned in the Preamble to our Constitution is a  part  of  the
basic structure of our Constitution.
11.   Finally, in Ramesh Yeshwant Prabhoo this Court held that  the  use  of
the word “his” in sub-section (3) of  Section  123  of  the  Act  must  have
significance and it cannot be ignored or equated  with  the  word  “any”  to
bring within the net of sub-section (3) any  appeal  in  which  there  is  a
reference to religion.  It was further held that if religion  is  the  basis
on which an appeal to  vote  or  refrain  from  voting  for  any  person  is
prohibited by Section 123 (3) of the Act it must be that  of  the  candidate
for whom the appeal to vote is made or against a rival candidate to  refrain
from voting.  This Court observed as follows:
“There can be no doubt that the word ‘his’  used  in  sub-section  (3)  must
have significance and it cannot be ignored or equated with  the  word  ‘any’
to bring within the net of sub-section (3) any appeal in which there is  any
reference to religion. The religion forming the basis of the 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. This is  clear  from  the
plain language of sub-section (3) and this is the only manner in  which  the
word ‘his’ used therein can be construed. The expressions “the appeal  …  to
vote or refrain from voting for any person on  the  ground  of his religion,
for the furtherance of the prospects of the election of  that  candidate  or
for prejudicially affecting the election of any candidate” lead  clearly  to
this conclusion. When the appeal is to vote on the ground of ‘his’  religion
for the furtherance of the prospects of  the  election  of  that  candidate,
that appeal is made on the basis of the religion of the candidate  for  whom
votes are solicited. On the other hand when the appeal is  to  refrain  from
voting for any person on the ground  of  ‘his’  religion  for  prejudicially
affecting the election of  any  candidate,  that  appeal  is  based  on  the
religion of the candidate whose  election  is  sought  to  be  prejudicially
affected. It is thus clear that for soliciting votes for  a  candidate,  the
appeal prohibited is that which is made on the ground  of  religion  of  the
candidate for whom the votes are sought; and when the appeal is  to  refrain
from voting for any candidate, the prohibition is against an appeal  on  the
ground of the religion of that other candidate.  The  first  is  a  positive
appeal and the second a negative appeal.  There  is  no  ambiguity  in  sub-
section (3) and it clearly indicates the particular religion  on  the  basis
of which an appeal to  vote  or  refrain  from  voting  for  any  person  is
prohibited under sub-section (3).” [Emphasis supplied by us].



12.    In  Ramesh  Yeshwant  Prabhoo  the  decision  in  Kultar  Singh   was
distinguished, inter alia, on the ground that the text  of  sub-section  (3)
of Section 123 of the Act under consideration was prior to its amendment  in
1961. It is not all clear how this  conclusion  was  arrived  at  since  the
paraphrasing of the language of the provision in Kultar Singh suggests  that
the text under  consideration  was  post-1961.  Further,  a  search  in  the
archives of this Court reveals that the election petition out of  the  which
the decision arose was the General Election of 1962 in  which  Kultar  Singh
had contested  the  elections  for  the  Punjab  Legislative  Assembly  from
Dharamkot constituency  No.  85.  Quite  clearly,  the  law  applicable  was
Section 123(3) of the Act after the amendment of the Act in 1961.

13.   Be that as it may, the fact is that sub-section (3) of Section 123  of
the Act was interpreted in a narrow manner in Jagdev Singh Sidhanti  but  in
a broad manner in Kultar Singh without reference to Jagdev  Singh  Sidhanti.
A narrow and restricted interpretation was given to Section  123(3)  of  the
Act in Kanti Prasad Jayshanker Yagnik  without  reference  to  Jagdev  Singh
Sidhanti or Kultar  Singh.   Ramesh  Yeshwant  Prabhoo  decided  about  four
decades later gave a narrow and restricted meaning to the  provision  by  an
apparent misreading of  Section  123(3)  of  the  Act.  Hence  the  apparent
conflict pointed out in Narayan Singh. In any event  today  (and  under  the
circumstance mentioned above) this provision  falls  for  our  consideration
and interpretation.

Legislative history
14.   Corrupt practices during the election process were  explained  in  the
Act (as it was originally  enacted  in  1951)  in  Chapter  I  of  Part  VII
thereof. Section 123 dealt with major corrupt practices  while  Section  124
dealt with minor corrupt practices. Chapter II dealt with illegal  practices
for the purposes of the Act. As far as we are concerned, Section  124(5)  of
the Act (dealing with minor  corrupt  practices)  as  originally  framed  is
relevant and this reads as follows:

(5) The systematic appeal to vote or  refrain  from  voting  on  grounds  of
caste, race, community or religion or the use of, or  appeal  to,  religious
and national symbols, such as, the national flag and  the  national  emblem,
for the furtherance of the prospects of a candidate’s election.



15.   It will be apparent that Section 124(5) of the Act made a  ‘systematic
appeal’ (quite obviously to an elector) by anybody ‘to vote or refrain  from
voting’ on certain specified grounds ‘for the furtherance of  the  prospects
of a candidate’s  election’,  a  deemed  minor  corrupt  practice.  For  the
present we are not concerned with the  consequence  of  anyone  being  found
guilty of a minor corrupt practice.
16.   In 1956 the Act was amended by Act No. 27 and the distinction  between
major corrupt practices and minor corrupt practices was removed.  Therefore,
for Chapters I and II of Part VII of the Act only Chapter  I  providing  for
corrupt practices was substituted. Section 123(3) of the Act (as amended  in
1956) reads as follows:
(3) The systematic appeal by a candidate  or  his  agent  or  by  any  other
person to vote or refrain from voting on grounds of caste,  race,  community
or religion 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 that candidate’s election.



17.   The significant change made by the amendment carried out in  1956  was
that now the ‘systematic appeal’ by ‘a candidate or  his  agent  or  by  any
other person’ was a deemed corrupt  practice.  However,  it  was  not  clear
whether that ‘any other person’ could be a  person  not  authorized  by  the
candidate to make a ‘systematic appeal’ for or on his or her behalf or  make
the ‘systematic appeal’ without the consent of the candidate. For  this  and
other reasons as well, it became necessary to further amend the Act.

18.   Accordingly, by an amendment carried out in 1958, the  Act  was  again
amended and the words “with the consent  of  a  candidate  or  his  election
agent” were added after the words “any other person’  occurring  in  Section
123(3) of the Act.  Consequently,  Section  123(3)  of  the  Act  after  its
amendment in 1958 read as follows:
(3) The systematic 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 on the grounds of caste, race, community or religion  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 that candidate’s election.



19.   Progressively therefore Section 123(3) of  the  Act  and  the  corrupt
practice that it recognized became candidate-centric in that  a  ‘systematic
appeal’ would have to be made (to an elector) by a candidate, his  agent  or
any other person  with  the  candidate’s  consent  or  the  consent  of  the
candidate’s election agent ‘to vote  or  refrain  from  voting’  on  certain
specified grounds ‘for the furtherance of the  prospects  of  a  candidate’s
election’.

20.   Apparently to make the corrupt practice more broad-based, the Act  was
sought to be amended in 1961. A Bill to this effect was  introduced  in  the
Lok Sabha on 10th August, 1961. The Notes on Clauses accompanying  the  Bill
(the relevant clause being Clause 25) stated as follows:

Clauses 25, 26, 29 and 30. - For curbing communal and separatist  tendencies
in the country it is proposed to widen the scope  of  the  corrupt  practice
mentioned in clause (3) of section 123 of the 1951  Act  (as  in  sub-clause
(a) of clause 25), and to provide for a new corrupt  practice  (as  in  sub-
clause (b) of clause 25) and a new electoral offence (as in clause (26)  for
the promotion of feelings of hatred  and  enmity  on  grounds  of  religion,
race, caste, community or language. It is also proposed that conviction  for
this new offence will entail disqualification for membership  of  Parliament
and of State Legislatures and also for  voting  at  any  election.  This  is
proposed to be done by suitable amendments in section 139  and  section  141
of the 1951 Act as in clauses 29 and 30 respectively.

21.   Three objectives of the Bill stand out from the Notes on  Clauses  and
they indicate that the amendment was necessary to:  (1)  Curb  communal  and
separatist tendencies in the country; (2) Widen the  scope  of  the  corrupt
practice mentioned in sub-section  (3)  of  Section  123  of  the  Act;  (3)
Provide for a new corrupt practice (as in  sub-clause  (b)  of  clause  25).
The proposed amendment reads as follows:

25. In section 123 of the 1951-Act, —

(a) in clause (3) —

     (i) the word “systematic” shall be omitted,

    (ii) for the words “caste,  race,  community  or  religion”,  the  words
“religion, race, caste, community or language” shall be substituted;

(b) after clause (3), the following clause shall be inserted, namely: —

“(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 that candidate's election.”.



22.   The Bill was referred to the Select Committee  on  14th  August,  1961
which was required to submit its Report by 19th  August,  1961.  The  Select
Committee held four meetings and adopted a Report on the scheduled date.  It
was observed in the Report that the proposed amendment to Section 123(3)  of
the Act “does not clearly bring out its intention.” Accordingly, the  Select
Committee re-drafted this provision to read as follows:
(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.



Similarly, an amendment was proposed in the new clause (3A) of  Section  123
of the Act and this reads as follows:
(3-A) 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.




23.   Minutes of Dissent were recorded by two Hon’ble Members of  Parliament
in the Report of the Select  Committee.  Ms.  Renu  Chakravartty  made  some
observations with regard  to  the  proposed  insertion  of  clause  (3A)  in
Section 123 of the Act and then noted with reference to clause  (3)  thereof
that:
“Even the declared object of this Bill of curbing communalism  seems  to  me
not to be seriously meant.  I suggest an  amendment  to  clause  23  to  the
effect that places of religious worship  or  religious  congregation  should
not be used  for  election  propaganda  and  the  practice  of  priests  and
dignitaries  appealing  to  religious  symbols  and  sentiments  should   be
regarded as corrupt practices. In Chapter III, I had proposed to make  these
as electoral offences  and  anyone  indulging  in  them  punishable.   I  am
surprised to see that even these amendments or  part  of  it  could  not  be
passed knowing what happens in elections, how pulpits in churches have  been
used for election propaganda by Catholic priests, how gurdwaras and  mosques
have been used, how people gathering at religious assemblies are  influenced
through religious leaders or bishops  or  parish  priests  wielding  immense
spiritual influence on their followers using  their  religious  position  to
exert undue influence in favour of certain parties.  It is but natural  that
anyone sincerely desirous of stamping out communalism from  elections  would
readily agree to this.   But  its  rejection  adds  to  the  suspicion  that
eradication of communalism  is  only  a  cloak  to  curb  in  elections  the
democratic and secular forces in practice.”



Ms. Renu Chakravartty  felt  that  the  object  of  the  Bill  was  to  curb
communalism but the Bill had not gone far enough in that direction.
24.   Shri Balraj Madhok also dissented. His dissent was,  however,  limited
to the deletion of the word “systematic” in clause (3)  of  Section  123  of
the Act.  He  also  did  not  dissent  on  the  issue  of  curbing  communal
tendencies. The relevant extract of the dissent of Shri Balraj Madhok  reads
as follows:
“I disagree with clause 23 of the Bill  which  aims  at  omitting  the  word
“systematic” in clause (3) of section 123  of  the  1951  Act.  By  omitting
these words any stray remarks of any speaker might be taken advantage of  by
the opponents for the purpose of an election  petition.  Only  a  systematic
and planned propaganda of communal nature should be made reprehensible.”



25.   Eventually the enactment by Parliament after  a  detailed  debate  was
the re-drafted version contained in the  Report  of  the  Select  Committee.
This reads as follows:
“(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.

(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  that  candidate  or  for  prejudicially
affecting the election of any candidate.”

26.   Significantly, the word “systematic” was deleted despite  the  dissent
of Shri Balraj Madhok.  The effect of this is that even a single  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
for the furtherance of the prospects of the election of  that  candidate  or
for prejudicially affecting the election of any candidate  would  be  deemed
to be a corrupt practice for the purposes of the Act.



27.    The  sweep  of  sub-section  (3)  of  Section  123  of  the  Act  was
considerably enlarged in 1961 by deleting the word “systematic”  before  the
word appeal and according to learned counsel for the  appellants  the  sweep
was apparently restricted by inserting the word “his” before religion.



28.   Interestingly, simultaneous with  the  introduction  of  the  Bill  to
amend the Act, a Bill to amend Section 153A of the Indian  Penal  Code  (the
IPC) was moved by Shri Lal Bahadur Shastri. The  Statement  of  Objects  and
Reasons for introducing the amendment notes that  it  was,  inter  alia,  to
check fissiparous, communal  and  separatist  tendencies  whether  based  on
grounds of religion, caste, language or community or any other  ground.  The
Statement of Objects and Reasons reads as follows:



                              STATEMENT OF OBJECTS AND REASONS

In  order  effectively  to  check  fissiparous   communal   and   separatist
tendencies  whether  based  on  grounds  of  religion,  caste,  language  or
community or any other ground, it is proposed to amend section 153A  of  the
Indian Penal Code so as to make  it  a  specific  offence  for  any  one  to
promote  or  attempt  to  promote  feelings  of  enmity  or  hatred  between
different religious, racial or language groups  or  castes  or  communities.
The Bill also seeks to make it an offence for any one to do  any  act  which
is prejudicial to the maintenance of harmony  between  different  religious,
racial or language groups or castes or communities and which  is  likely  to
disturb public tranquillity. Section 295A of the Indian Penal Code is  being
slightly widened and the punishment for the offence under that  section  and
under section 505 of the Code is being increased from two to three years.



NEW DELHI;                                         LAL BAHADUR
The 5th August, 1961.



29.   The Bill to amend the IPC was passed by Parliament  and  Section  153A
of the IPC was substituted by the following:

“153A. Whoever—

      (a) by words, either spoken or written, or  by  signs  or  by  visible
representations or otherwise, promotes, or attempts to promote,  on  grounds
of religion,  race,  language,  caste  or  community  or  any  other  ground
whatsoever, feelings  of  enmity  or  hatred  between  different  religious,
racial or language groups or castes or communities, or

      (b) commits any  act  which  is  prejudicial  to  the  maintenance  of
harmony between different religious, racial or language groups or castes  or
communities  and  which  disturbs  or  is  likely  to  disturb  the   public
tranquillity,

      shall be punished with imprisonment which may extend to  three  years,
or with fine, or with both.



Piloting the Bill



30.   While piloting the Bill relating to the amendment to  sub-section  (3)
of Section 123 of the Act the Law Minister Shri A.K.  Sen  adverted  to  the
amendment to the  IPC  and  indeed  viewed  the  amendment  to  the  Act  as
consequential and an attempt to grapple “with a very difficult disease.”  It
is worth quoting what Shri A.K. Sen had to say for this limited purpose:

“Now, I come to the main question with regard to clauses  23  and  24,  that
is, the new provision in  clause  23  seeking  to  prohibit  the  appeal  to
communal or linguistic sentiments, and also clause 24  which  penalizes  the
creation of enmity between different classes.  Those hon. Members  who  feel
that we should have  kept  the  word  ‘systematic’  have  really  failed  to
appreciate the very purpose of this amendment.  There  would  have  been  no
necessity of this amendment if the old section with  the  word  ‘systematic’
had served its purpose.  It is well known that the old section was  as  good
as dead.  There could have been no possibility of preventing  an  appeal  to
communal,  religious  or  other   sectarian   interests,   with   the   word
‘systematic’ in the section, because  it  is  impossible  to  prove  that  a
person or a candidate or his agent was doing it systematically; and  one  or
two cases would not be regarded as systematic.  We feel, and I think it  has
been the sense of this House  without  any  exception,  that  even  a  stray
appeal to success at the polls on the ground of  one’s  religion  or  narrow
communal  affiliation  or  linguistic  affiliation  would  be  viewed   with
disfavor by us here and by the law.  Therefore, I think  that  when  we  are
grappling with a very difficult disease, we should be quite frank  with  our
remedy and not tinker with the problem, and  we  should  show  our  disfavor
openly and publicly  even of  stray  cases  of  attempts  to  influence  the
electorate by appealing to their sectarian interests or passions.   I  think
that this amendment follows as a consequence of the amendment which we  have
already made in the Indian Penal Code.  Some hon. Members have said that  it
is unnecessary.  In my submission, it follows automatically that  we  extend
it to the  sphere  of  elections  and  say  categorically  that  whoever  in
connection with an election creates  enmity  between  different  classes  of
citizens shall be punishable.  The other thing is a general thing.   If  our
whole purpose is to  penalize  all  attempts  at  influencing  elections  by
creating enmity between different classes and communities then we  must  say
that in connection with the election,  no  person  shall  excepting  at  the
peril of violating our penal law, shall attempt to influence the  electorate
by creating such enmity or hatred between communities.  I think  that  these
two provisions, if followed faithfully, would go a long way  in  eradicating
or at least in checking the evil which has raised its ugly head in  so  many
forms all over the country in recent years.” [Emphasis supplied].



31.    The  significance  of  this  speech  by  the  Law  Minister  is  that
Parliament was invited to  unequivocally  launch  a  two-pronged  attack  on
communal, separatist and fissiparous tendencies that seemed  to  be  on  the
rise in the country. An amendment to the IPC had already been made  and  now
it was necessary to pass the amendment to  the  Act.   A  sort  of  ‘package
deal’  was  presented  to  Parliament  making  any   appeal   to   communal,
fissiparous and  separatist  tendencies  an  electoral  offence  leading  to
voiding an election and a possible disqualification of  the  candidate  from
contesting  an  election  or  voting  in  an  election  for  a  period.   An
aggravated form of any such tendency could invite action under the  criminal
law of the land.



32.   Although we are concerned with Section 123(3) of the  Act  as  enacted
in  1961[15]  and  in  view  of  the  limited   reference   made,   to   the
interpretation of his religion, race, caste, community or  language  in  the
context in which the expression is used, we  cannot  completely  ignore  the
contemporaneous introduction of sub-section (3A) in Section 123 of  the  Act
nor the introduction of Section 153A of the IPC.



Submissions and discussion



33.   At the outset we may state that we heard a large number  of  counsels,
many of them on behalf of interveners  which  included  (surprisingly)  some
States. However, the leading submissions on behalf of the appellants on  the
issue before us were addressed by Shri Shyam Divan,  Senior  Advocate.  Some
learned  counsels  supplemented  him  while  others   opposed   his   narrow
interpretation of the provision under consideration.



34.   Basically, four principal submissions were  made  by  learned  counsel
for the appellants: Firstly, that sub-section (3) of Section 123 of the  Act
must be given a literal interpretation. It was submitted  that  the  bar  to
making an appeal on the ground of  religion[16]  must  be  confined  to  the
religion of the candidate – both for the furtherance  of  the  prospects  of
the election of that candidate or for prejudicially affecting  the  election
of any candidate. The text of sub-section (3) of  Section  123  of  the  Act
cannot be stretched to include the religion of the elector or  that  of  the
agent or that of the person making  the  appeal  with  the  consent  of  the
candidate. Secondly and this  a  facet  of  the  first  submission,  it  was
submitted that sub-section (3) of Section 123 of the Act ought to  be  given
a restricted application since the civil consequence  that  follows  from  a
corrupt practice under this provision is quite severe.  If  a  candidate  is
found guilty of a corrupt practice the election might be  declared  void[17]
and that candidate might also suffer disqualification for a  period  of  six
years in accordance with Section 8-A read with Section 11-A of the  Act.[18]
Therefore, a broad interpretation of sub-section (3) of Section 123  of  the
Act must be eschewed and it should be  given  a  restricted  interpretation.
Thirdly, it was submitted that if a broad  or  purposive  interpretation  is
given to sub-section (3) of Section 123 of the  Act  then  that  sub-section
might fall foul of  Article  19(1)(a)  of  the  Constitution.  Fourthly  and
finally,  it  was  submitted  that  departing  from  a  literal  or   strict
interpretation of sub-section (3) of Section  123  of  the  Act  would  mean
unsettling the law accepted over several decades and we should  not  charter
our course in that direction unless there was strong reason to  do  so,  and
that there was no such strong reason forthcoming.



35.   At the outset, we may mention  that  while  considering  the  mischief
sought to be suppressed by sub-sections (2), (3) and (3A) of Section 123  of
the Act, this Court observed in Ziyauddin Burhanuddin Bukhari  v.  Brijmohan
Ramdass  Mehra[19]  that  the  historical,  political   and   constitutional
background of our democratic set-up needed adverting to. In this context  it
was  said  that  our  Constitution  makers  intended  a  secular  democratic
republic where differences should not be permitted to be exploited.  It  was
said:

“Our Constitution-makers certainly intended to set up a  Secular  Democratic
Republic the binding spirit of which is summed  up  by  the  objectives  set
forth in the preamble to  the  Constitution.  No  democratic  political  and
social order, in which the  conditions  of  freedom  and  their  progressive
expansion for all make some regulation of all activities  imperative,  could
endure without an agreement on the basic essentials which  could  unite  and
hold citizens together  despite  all  the  differences  of  religion,  race,
caste, community, culture, creed and language. Our  political  history  made
it  particularly  necessary  that  these  differences,  which  can  generate
powerful emotions, depriving people of their powers of rational thought  and
action, should  not  be  permitted  to  be  exploited  lest  the  imperative
conditions for the preservation of democratic freedoms are disturbed.

It seems to us that Section  123,  sub-sections  (2),  (3)  and  (3-A)  were
enacted so as to eliminate, from the electoral  process,  appeals  to  those
divisive factors which arouse irrational passions that run  counter  to  the
basic tenets of our Constitution, and, indeed, of  any  civilised  political
and social order. Due respect  for  the  religious  beliefs  and  practices,
race, creed, culture and language of other citizens  is  one  of  the  basic
postulates of our democratic system. Under the guise of protecting your  own
religion, culture, or creed you cannot embark on personal attacks  on  those
of others or whip up low herd instincts and animosities or irrational  fears
between groups to secure electoral victories. The line has to  be  drawn  by
the courts, between what  is  permissible  and  what  is  prohibited,  after
taking into account the facts and circumstances of each case interpreted  in
the context in which the  statements  or  acts  complained  of  were  made.”
[Emphasis supplied by us].


The above expression of views was cited with approval in S. Hareharan  Singh
v. S. Sajjan Singh.[20]
Literal versus Purposive Interpretation
36.   The conflict between giving a literal interpretation  or  a  purposive
interpretation to a statute or a provision in a  statute  is  perennial.  It
can be settled only if the draftsman  gives  a  long-winded  explanation  in
drafting the law but this would result in an awkward draft that  might  well
turn out to be unintelligible. The interpreter has, therefore,  to  consider
not only the text of the law but the context in which the  law  was  enacted
and the social context in which the law should  be  interpreted.   This  was
articulated rather felicitously  by  Lord  Bingham  of  Cornhill  in  R.  v.
Secretary of State for Health ex parte Quintavalle[21] when it was said:

“8. The basic task of the court is to ascertain and give effect to the  true
meaning of what Parliament has said in the enactment to  be  construed.  But
that is not  to  say  that  attention  should  be  confined  and  a  literal
interpretation given  to  the  particular  provisions  which  give  rise  to
difficulty. Such an  approach  not  only  encourages  immense  prolixity  in
drafting, since the draftsman will feel obliged  to  provide  expressly  for
every contingency which may possibly arise. It may also  (under  the  banner
of loyalty to the will of Parliament) lead to the frustration of that  will,
because undue concentration on the minutiae of the enactment  may  lead  the
court to neglect the purpose which Parliament intended to  achieve  when  it
enacted the statute. Every statute other than a pure  consolidating  statute
is, after all, enacted to make some change,  or  address  some  problem,  or
remove some blemish, or effect some improvement in the  national  life.  The
court's task, within the permissible bounds of interpretation,  is  to  give
effect to Parliament's purpose. So the controversial  provisions  should  be
read in the context of the statute as a whole, and the statute  as  a  whole
should be read in the historical context of the situation which led  to  its
enactment.


9. There is, I think, no  inconsistency  between  the  rule  that  statutory
language retains the meaning it had when Parliament used  it  and  the  rule
that a statute is always speaking. If Parliament, however long  ago,  passed
an Act applicable to dogs, it could not properly be interpreted to apply  to
cats; but it could properly be held to  apply  to  animals  which  were  not
regarded as dogs when the Act was  passed  but  are  so  regarded  now.  The
meaning of "cruel and unusual punishments" has not changed  over  the  years
since 1689, but many punishments which were not then thought to fall  within
that category would now be held to do so. The courts have frequently had  to
grapple with the question whether  a  modern  invention  or  activity  falls
within old statutory language:  see  Bennion, Statutory  Interpretation, 4th
ed (2002) Part XVIII, Section 288. A revealing example is found  in Grant  v
Southwestern and County Properties Ltd [1975] Ch 185, where Walton J had  to
decide whether a tape recording fell within  the  expression  "document"  in
the Rules of the Supreme Court. Pointing out (page 190) that the  furnishing
of information had been treated as one of the main functions of a  document,
the judge concluded that the tape recording was a document.”




37.   In the same decision, Lord  Steyn  suggested  that  the  pendulum  has
swung towards giving a purposive interpretation to statutes  and  the  shift
towards purposive construction is today not in doubt, influenced in part  by
European  ideas,  European  Community  jurisprudence  and   European   legal
culture. It was said:

“……. the adoption of  a  purposive  approach  to  construction  of  statutes
generally, and the 1990 Act [Human Fertilisation and  Embryology  Act  1990]
in  particular,  is  amply  justified  on   wider   grounds.   In Cabell   v
Markham[22] Justice  Learned  Hand  explained  the   merits   of   purposive
interpretation, at p 739:

“Of course it is true that the words used, even in their literal sense,  are
the primary, and ordinarily the most reliable, source  of  interpreting  the
meaning of any writing: be it a statute, a contract, or anything  else.  But
it is one of the surest indexes of a mature developed jurisprudence  not  to
make a fortress out of the dictionary; but to remember that statutes  always
have  some  purpose  or  object  to  accomplish,   whose   sympathetic   and
imaginative discovery is the surest guide to their meaning.”

The pendulum has swung  towards  purposive  methods  of  construction.  This
change was not initiated by the teleological approach of European  Community
jurisprudence, and the influence of European legal  culture  generally,  but
it has been accelerated by European ideas: see,  however,  a  classic  early
statement  of  the  purposive  approach  by  Lord  Blackburn  in River  Wear
Commissioners v Adamson[23].  In  any  event,  nowadays  the  shift  towards
purposive interpretation is not in doubt.  The  qualification  is  that  the
degree of liberality permitted is  influenced  by  the  context,  eg  social
welfare legislation and tax statutes may  have  to  be  approached  somewhat
differently.” [Emphasis supplied by us].



To  put  it  in  the  words  of  Lord  Millett:  “We   are   all   purposive
constructionists now.”[24]

In Bennion on Statutory Interpretation[25] it is said that:

      “General judicial adoption of the  term  ‘purposive  construction’  is
recent, but the concept is not new. Viscount  Dilhorne,  citing  Coke,  said
that while it is now fashionable to talk of a purposive  construction  of  a
statute the need for such a  construction  has  been  recognized  since  the
seventeenth century.[26] In fact the recognition goes  considerable  further
back than that. The difficulties over  statutory  interpretation  belong  to
the language, and there is unlikely to be  anything  very  novel  or  recent
about their  solution……..   Little  has  changed  over  problems  of  verbal
meaning  since  the  Barons  of  the  Exchequer  arrived  at  their   famous
resolution in Heydon’s Case.[27] Legislation is still about  remedying  what
is thought  to  be  a  defect  in  the  law.  Even  the  most  ‘progressive’
legislator, concerned to implement some  wholly  normal  concept  of  social
justice,  would  be  constrained  to  admit  that  if   the   existing   law
accommodated the notion there would be no need to change it. No  legal  need
that is ….” [Emphasis supplied by us].



38.   We see no reason to take a different view. Ordinarily,  if  a  statute
is well-drafted and debated in Parliament there is  little  or  no  need  to
adopt  any  interpretation  other  than  a  literal  interpretation  of  the
statute. However, in a welfare State like ours, what  is  intended  for  the
benefit of the people is not fully reflected in the text of  a  statute.  In
such legislations, a pragmatic view is required to  be  taken  and  the  law
interpreted purposefully and realistically so that the benefit  reaches  the
masses. Of course, in statutes that have a penal consequence and affect  the
liberty of an individual or a statute that could impose a  financial  burden
on a person, the rule of literal interpretation would still hold good.

39.   The Representation of the People Act, 1951 is a statute  that  enables
us to cherish and strengthen our democratic ideals. To  interpret  it  in  a
manner that assists candidates to an election rather  than  the  elector  or
the electorate in a vast democracy like ours would really be  going  against
public interest. As it was famously said by Churchill:  “At  the  bottom  of
all the tributes paid to democracy is  the  little  man,  walking  into  the
little booth, with a little pencil, making a little cross on  a  little  bit
of paper…” if the electoral law needs  to  be  understood,  interpreted  and
implemented in a manner that benefits the “little man” then it must  be  so.
For the Representation of the People Act, 1951 this would be the essence  of
purposive interpretation.
40.   To fortify his submission that sub-section (3) of Section 123  of  the
Act should be  given  a  narrow  interpretation,  learned  counsel  for  the
appellants referred to the debates on the subject  in  Parliament  extracted
in Ramesh Yeshwant Prabhoo. It is not necessary to delve  into  the  debates
in view of  the  clear  expression  of  opinion  that  the  purpose  of  the
amendment was to widen the scope of  corrupt  practices  to  curb  communal,
fissiparous and separatist tendencies and that was also ‘the  sense  of  the
House’. How and in what manner should the result be achieved was  debatable,
but that it must be achieved was not in doubt.

41.   The purpose of enacting sub-section (3) of Section 123 of the Act  and
amending it more than once during the course of the first 10  years  of  its
enactment indicates the seriousness with which Parliament grappled with  the
necessity of curbing  communalism,  separatist  and  fissiparous  tendencies
during an election campaign (and even otherwise in view of the amendment  of
Section 153A of the IPC).  It is  during  electioneering  that  a  candidate
goes virtually all out to seek votes  from  the  electorate  and  Parliament
felt it necessary to put some fetters on the language that might be used  so
that the democratic process is not derailed but  strengthened.   Taking  all
this into consideration, Parliament felt the need to place  a  strong  check
on corrupt practices based on  an  appeal  on  grounds  of  religion  during
election campaigns (and even otherwise).

42.   The concerns which formed the ground for amending  Section  123(3)  of
the Act have increased with the tremendous  reach  already  available  to  a
candidate through the print and electronic media, and  now  with  access  to
millions through the internet and social  media  as  well  as  mobile  phone
technology, none of which were seriously  contemplated  till  about  fifteen
years ago. Therefore now, more than ever it is necessary to ensure that  the
provisions of sub-section (3) of Section 123 of the Act  are  not  exploited
by a candidate or anyone on his or her behalf by making  an  appeal  on  the
ground of religion with a possibility of disturbing the even tempo of life.

Social context adjudication

43.   Another facet of purposive interpretation of  a  statute  is  that  of
social  context  adjudication.  This  has  been  the   subject   matter   of
consideration and encouragement by the Constitution Bench of this  Court  in
Union of India v. Raghubir Singh (Dead) by Lrs.[28]  In that decision,  this
Court noted with approval the view  propounded  by  Justice  Holmes,  Julius
Stone and Dean Roscoe Pound to the effect that law must  not  remain  static
but move ahead with the times keeping in mind the  social  context.  It  was
said:

“But like all principles evolved by man for the  regulation  of  the  social
order, the doctrine of binding precedent is circumscribed in its  governance
by perceptible limitations, limitations arising by  reference  to  the  need
for readjustment in a  changing  society,  a  readjustment  of  legal  norms
demanded by a changed social context. This need for adapting the law to  new
urges in society brings home the truth of the Holmesian aphorism  that  “the
life of the law has not been logic it has been  experience”,[29]  and  again
when he declared in another study[30] that “the law is forever adopting  new
principles from life at one end”,  and  “sloughing  off”  old  ones  at  the
other. Explaining the conceptual import of  what  Holmes  had  said,  Julius
Stone  elaborated  that  it  is  by  the  introduction  of  new  extra-legal
propositions  emerging  from  experience  to  serve  as  premises,   or   by
experience-guided choice between competing legal propositions,  rather  than
by the operation of logic upon existing legal propositions, that the  growth
of law tends to be determined.”[31] [Emphasis supplied by us].



A little later in the decision it was said:


“Not infrequently,  in  the  nature  of  things  there  is  a  gravity-heavy
inclination to follow the groove set by precedential law.  Yet  a  sensitive
judicial conscience often persuades the mind to search for a  different  set
of norms more responsive to the changed social context. The  dilemma  before
the Judge poses the task of finding a new equilibrium  prompted  not  seldom
by the  desire  to  reconcile  opposing  mobilities.  The  competing  goals,
according to Dean Roscoe Pound, invest the  Judge  with  the  responsibility
“of proving to mankind that the law was something fixed and  settled,  whose
authority was beyond question, while at the same time enabling  it  to  make
constant readjustments and occasional radical changes under the pressure  of
infinite and variable human desires”.[32] The  reconciliation  suggested  by
Lord Reid in The Judge as Law Maker[33] lies in keeping both  objectives  in
view, “that the law shall be certain, and that it shall be  just  and  shall
move with the times”. [Emphasis supplied by us].



44.   Similarly, in Maganlal Chhaganlal (P) Ltd.  v.  Municipal  Corporation
of Greater Bombay[34] Justice H.R. Khanna rather pragmatically put it  that:


“As in life so in law things are not static. Fresh vistas and  horizons  may
reveal themselves as a result of the impact of new  ideas  and  developments
in different fields of life. Law, if it has to satisfy human  needs  and  to
meet the problems of life, must adapt itself to cope  with  new  situations.
Nobody is  so  gifted  with  foresight  that  he  can  divine  all  possible
human events in advance and prescribe proper rules for each of  them.  There
are, however, certain verities which are of the essence of the rule  of  law
and no law can afford to do away with them. At the same time it  has  to  be
recognized that there is a continuing process of the growth of law  and  one
can retard it only at the risk of  alienating  law  from  life  itself……...”
[Emphasis supplied by us].



45.   Finally, in Badshah v. Urmila Badshah Godse[35] this Court  reaffirmed
the need  to  shape  law  as  per  the  changing  needs  of  the  times  and
circumstances. It was observed:

“The law regulates relationships between people. It prescribes  patterns  of
behaviour. It reflects the values of society. The role of the  court  is  to
understand the purpose of law in society and to help  the  law  achieve  its
purpose. But the law of a society is a living organism. It  is  based  on  a
given factual and social reality  that  is  constantly  changing.  Sometimes
change in law precedes societal change and is  even  intended  to  stimulate
it. In most cases, however, a change in law is the result  of  a  change  in
social reality. Indeed, when social reality changes,  the  law  must  change
too. Just as change in social reality is the law of life, responsiveness  to
change in social reality is the life of the law. It can  be  said  that  the
history of law is the history of adapting  the  law  to  society's  changing
needs. In both constitutional and statutory  interpretation,  the  court  is
supposed to exercise  discretion  in  determining  the  proper  relationship
between the  subjective  and  objective  purposes  of  the  law.”  [Emphasis
supplied by us].



46.   There is no doubt in our mind that keeping in view the social  context
in which sub-section (3) of Section 123 of the Act was enacted  and  today’s
social and technological context, it  is  absolutely  necessary  to  give  a
purposive interpretation to the provision rather than a  literal  or  strict
interpretation as suggested by learned counsel for  the  appellants,  which,
as he suggested, should be limited only to the candidate’s religion or  that
of his rival candidates. To the extent  that  this  Court  has  limited  the
scope of Section 123(3) of the Act in Jagdev Singh  Sidhanti,  Kanti  Prasad
Jayshanker Yagnik and Ramesh Yeshwant Prabhoo to  an  appeal  based  on  the
religion of  the  candidate  or  the  rival  candidate(s),  we  are  not  in
agreement with the view expressed in these decisions.  We  have  nothing  to
say with regard to an appeal concerning the conservation of  language  dealt
with  in  Jagdev  Singh  Sidhanti.   That  issue  does  not  arise  for  our
consideration.


Constitutional validity of Section 123(3) of the Act



47.   Although it was submitted that a broad interpretation  given  to  sub-
section (3) of Section 123 of the Act might  make  it  unconstitutional,  no
serious submission was made in this regard. A similar  submission  regarding
the constitutional validity of Section 123(5) of  the  Act  was  dealt  with
rather dismissively by the Constitution Bench in Jamuna Prasad Mukhariya  v.
Lachhi Ram[36] when the sweep of the  corrupt  practice  on  the  ground  of
religion was rather broad. It was held:

“Both these provisions, namely sections 123(5) and 124(5),  were  challenged
as ultra vires Article 19(1)(a) of the Constitution. It was  contended  that
Article  245(1)  prohibits the making of laws which violate



the Constitution and that the impugned sections interfere with  a  citizen’s
fundamental  right  to  freedom  of  speech.  There  is  nothing   in   this
contention. These laws  do  not  stop  a  man  from  speaking.  They  merely
prescribe  conditions  which  must  be  observed  if  he  wants   to   enter
Parliament. The right to stand as a candidate and  contest  an  election  is
not a common law right. It is a special right created  by  statute  and  can
only  be  exercised  on  the  conditions  laid  down  by  the  statute.  The
Fundamental Rights Chapter has no bearing on a right like  this  created  by
statute. The appellants have no fundamental right to be elected  members  of
Parliament. If they want that they must observe the rules.  If  they  prefer
to exercise their right of free speech outside  these  rules,  the  impugned
sections do not stop them. We hold that these sections are intra vires.”


We need say nothing more on the subject.

Overturning the settled legal position

48.   Several decisions were cited before us to contend that we  should  not
unsettle the long-standing interpretation given to  Section  123(3)  of  the
Act. As we have indicated earlier, there  was  some  uncertainty  about  the
correct interpretation of sub-section (3) of Section 123 of the Act.  It  is
not as if the interpretation was well-recognized  and  settled.  That  being
the position, there is really nothing that survives in this submission.

Conclusion

49.   On a consideration of the entire material placed before us by  learned
counsels, we record our conclusions as follows:
The provisions of sub-section (3) of Section 123 of  the  Representation  of
the People Act, 1951 are required to be read and appreciated in the  context
of simultaneous and contemporaneous amendments  inserting  sub-section  (3A)
in Section 123 of the Act and inserting Section 153A  in  the  Indian  Penal
Code.



So read together, and for maintaining the purity of  the  electoral  process
and not vitiating it, sub-section (3) of Section 123 of  the  Representation
of the People Act, 1951 must be given a broad and  purposive  interpretation
thereby bringing within the sweep of a corrupt practice any appeal  made  to
an elector 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 the furtherance of the prospects of the election of  that  candidate  or
for prejudicially affecting the election of any candidate on the  ground  of
the religion, race, caste, community or language of  (i)  any  candidate  or
(ii) his agent or (iii) any other person making the appeal with the  consent
of the candidate or (iv) the elector.



It is a matter of evidence for determining whether  an  appeal  has  at  all
been made to an elector and whether the appeal if made is  in  violation  of
the provisions of sub-section (3) of Section 123 of  the  Representation  of
the People Act, 1951.

50.   The reference is answered as  above  and  the  matter  may  be  placed
before Hon’ble the Chief Justice for necessary orders.





                      .....................................................J
                                                ( MADAN B. LOKUR )



                                  NewDelhi;
            ...................................................J
 January 2, 2017                                       ( L. NAGESWARA  RAO )
                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                         CIVIL  APPEAL NO.37 OF 1992



       Abhiram  Singh                                                    ...
Appellant


                             VERSUS

C.D. Commachen (Dead) By Lrs. & Ors.               ... Respondents



                                    WITH


                       1 CIVIL APPEAL NO.8339 OF 1995





Narayan     Singh                                                        ...
Appellant


                             VERSUS

Sunderlal Patwa                                           ... Respondents


                                      1


                                 2 JUDGMENT


S. A. BOBDE, J.

      I agree with the conclusion drawn by  my  learned  brother  Lokur,  J.
that the bar under Section 123 (3) of  the  Representation  of  People  Act,
1951 (hereinafter referred to as “the Act”)  to  making  an  appeal  on  the
ground of religion must not be confined to the  religion  of  the  candidate
because of the word  ‘his’  in  that  provision.   I  also  agree  that  the
purposive interpretation in the social context adjudication as  a  facet  of
purposive interpretation warrants a broad interpretation  of  that  section.
That the section is intended to serve the broad purpose of checking  appeals
to religion, race, caste, community or language by any candidate.   That  to
maintain the sanctity of the democratic process and to avoid  the  vitiating
of secular atmosphere of democratic life an appeal to  any  of  the  factors
should avoid the election of the candidate making such an appeal.


2.    I would, however, add that such a construction is not  only  warranted
upon the application of the purposive test of  interpretation  but  also  on
textual  interpretation.   A  literal  interpretation  does  not  exclude  a
purposive interpretation of the provisions whether in relation to  a  taxing
statute or a  penal  statute.   In  IRC  v.  Trustees  of  Sir  John  Aird’s
Settlement [1984 CH 382 : (1983) 3 All ER 481 (CA)], the Court  observed  as
follows:


 “… Two methods of statutory interpretation have at times  been  adopted  by
the court. One,  sometimes  called  literalist,  is  to  make  a  meticulous
examination  of  the  precise  words  used.  The  other   sometimes   called
purposive, is to consider the object of the relevant provision in the  light
of the other  provisions  of  the  Act  —  the  general  intendment  of  the
provisions. They are not mutually exclusive and  both  have  their  part  to
play even in the interpretation of a taxing statute.”




      There seems no valid reason  while  construing  a  statute  (be  it  a
taxing or  penal  statute)  why  both  rules  of  interpretation  cannot  be
applied.


3.    Sub-section (3) of Section 123 of the Act reads as follows:




“123 (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”.



      The provision prohibits an “appeal by a candidate”, etc. “to  vote  or
refrain from voting for any person on the  ground  of  his  religion”,  etc.
The word “his” occurring in the section refers not only to the candidate  or
his agent but is also intended to refer  to  the  voter  i.e.  the  elector.
What is prohibited by a candidate is an appeal to vote on  certain  grounds.
The word “his” therefore must necessarily be taken  to  embrace  the  entire
transaction of the appeal to vote made to voters and must be held  referable
to all the actors involved i.e. the candidate, his election agent  etc.  and
the voter.  Thus, the pronoun in the singular “his” refers  to  a  candidate
or his agent or any other person with the consent  of  a  candidate  or  his
election agent and to the voter.  In other words, what is prohibited  is  an
appeal by a candidate etc. to a voter  for  voting  on  the  ground  of  his
religion  i.e.  those  categories  preceding  “his”.  This  construction  is
fortified by the purposive test.


4.    It is settled law  that  while  interpreting  statutes,  wherever  the
language is clear, the intention of the legislature must  be  gathered  from
the language used and support from extraneous sources should be avoided.   I
am of the view that the language that is used in Section 123 (3) of the  Act
intends to include the voter and the pronoun “his” refers to  the  voter  in
addition to the  candidate,  his  election  agent  etc.   Also  because  the
intendment and the purpose of the statute is to prevent an appeal  to  votes
on the ground of religion.  I consider it an unreasonable shrinkage to  hold
that only an appeal referring to the religion of the candidate who made  the
appeal is prohibited and not an appeal  which  refers  to  religion  of  the
voter.  It is quite conceivable that a candidate  makes  an  appeal  on  the
ground of religion but leaves out any reference to  his  religion  and  only
refers to religion of the voter.  For example,  where  a  candidate  or  his
election agent, appeals to a voter highlighting that the opposing  candidate
does not belong to a particular religion, or  caste  or  does  not  speak  a
language, thus emphasizing the distinction between the audience’s  (intended
voters) religion, caste or language, without referring to the  candidate  on
whose behalf the appeal is made, and  who  may  conform  to  the  audience’s
religion, caste or speak their language, the provision  is  attracted.   The
interpretation that I suggest therefore, is wholesome and  leaves  no  scope
for any sectarian caste or language based  appeal  and  is  best  suited  to
bring out the intendment of the provision.   There  is  no  doubt  that  the
section on textual and contextual interpretation proscribes a  reference  to
either.


5.    This Court in Grasim Industries v. Collector of Customs, Bombay  [2002
(4) SCC 297] observed as follows:-

“10. No words or  expressions  used  in  any  statute  can  be  said  to  be
redundant or superfluous.  In  matters  of  interpretation  one  should  not
concentrate too much on one word and  pay  too  little  attention  to  other
words. No provision in the statute  and  no  word  in  any  section  can  be
construed in isolation. Every provision and every word  must  be  looked  at
generally and in the context in which it is used.  It  is  said  that  every
statute is  an  edict  of  the  legislature.  The  elementary  principle  of
interpreting any word while considering a statute is to gather the  mens  or
sententia legis of the legislature. Where the words are clear and  there  is
no  obscurity,  and  there  is  no  ambiguity  and  the  intention  of   the
legislature is clearly conveyed, there is no scope for  the  court  to  take
upon  itself  the  task  of  amending  or  alternating  (sic  altering)  the
statutory provisions. Wherever the language is clear the  intention  of  the
legislature is to be gathered from the language used. While doing  so,  what
has been said in the statute as also what  has  not  been  said  has  to  be
noted.  The  construction  which  requires  for  its  support  addition   or
substitution of words or which results in  rejection  of  words  has  to  be
avoided. As stated by the Privy Council in Crawford v.  Spooner  “we  cannot
aid the legislature’s defective phrasing of an Act, we cannot  add  or  mend
and, by construction make up deficiencies which are left there”. In case  of
an ordinary word there should be no attempt to substitute or  paraphrase  of
general application. Attention should be confined to what is  necessary  for
deciding the particular  case.  This  principle  is  too  well  settled  and
reference to a few decisions of this  Court  would  suffice.  (See:  Gwalior
Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested  Forests,  Union  of
India v. Deoki Nandan Aggarwal, Institute of Chartered Accountants of  India
v. Price Waterhouse and Harbhajan Singh v. Press Council of India)”



      It seems clear that the mens or sententia legis of the  Parliament  in
using the pronoun “his” was to prohibit an appeal made on the ground of  the
voter’s religion.  It was argued before us that  a  penal  statute  must  be
strictly construed so as not to widen the scope and  create  offences  which
are not intended by  the  legislature.   This  submission  is  well-founded.
However, it has no application  where  the  action  is  clearly  within  the
mischief of the provision.  Parliamentary intent therefore, was  to  clearly
proscribe appeals based on sectarian, linguistic  or  caste  considerations;
to infuse a modicum of oneness, transcending such  barriers  and  to  borrow
Tagore’s phrase transcend the fragmented “narrow domestic  walls”  and  send
out the message that regardless of these distinctions voters  were  free  to
choose the candidate best suited to represent them.


6.    The correct question is not whether a construction which is strict  or
one  which  is  more  free  should  be  adopted  but  –  what  is  the  true
construction of the statute.  A passage in Craies on Statute Law,  7th  Edn.
at Page No.531 reads as follows:-


“The distinction between a strict and  a  liberal  construction  has  almost
disappeared with regard to all classes of statutes, so  that  all  statutes,
whether penal or not, are now construed by  substantially  the  same  rules.
“All modern Acts are framed with  regard  to  equitable  as  well  as  legal
principles” [Edwards vs. Edwards : (1876) 2 Ch. D. 291, 297, Mellish L.  J.,
quoted with approval by Lord Cozens – Hardy M.R. in Re. Monolithic  Building
Co Ltd. (1915) 1 Ch. 643, 665].  “A hundred years ago”, said  the  Court  in
Lyons case [(1958)  Bell  C.C.  38,  45],  “statutes  were  required  to  be
perfectly precise, and resort was not had to a  reasonable  construction  of
the Act, and thereby criminals were often allowed to escape.   This  is  not
the present mode of construing Acts of Parliament.  They are  construed  now
with reference to the true meaning and real intention of the legislature.”

7.    It  is  an  overriding  duty  of  the  Court  while  interpreting  the
provision of a  statute  that  the  intention  of  the  legislature  is  not
frustrated and any doubt or ambiguity must be resolved by  recourse  to  the
rules of purposive construction.  In Balram Kumawat v. Union of India  [2003
(7) SCC 628], this Court observed as follows:-


“26. The courts will therefore reject that construction  which  will  defeat
the plain intention of  the  legislature  even  though  there  may  be  some
inexactitude in the language used. [See Salmon v. Duncombe (AC at p.  634).]
Reducing the legislation futility shall be avoided and in a case  where  the
intention of the legislature cannot be given effect  to,  the  courts  would
accept the  bolder  construction  for  the  purpose  of  bringing  about  an
effective result.  The  courts,  when  rule  of  purposive  construction  is
gaining momentum, should be very  reluctant  to  hold  that  Parliament  has
achieved nothing by the language it used when it is tolerably plain what  it
seeks to achieve. [See BBC Enterprises v. Hi-Tech Xtravision Ltd.(All ER  at
pp. 122-23).]”




      Further, this Court observed as follows:-


“36. These decisions are authorities for the proposition that  the  rule  of
strict construction of a regulatory/penal statute may not be adhered to,  if
thereby the plain intention  of  Parliament  to  combat  crimes  of  special
nature would be defeated.”




8.    Applying the above principles,  there  is  no  doubt  that  Parliament
intended an appeal for votes on the ground of religion  is  not  permissible
whether the appeal is made on the ground of the religion  of  the  candidate
etc. or of the  voter.   Accordingly,  the  words  “his  religion”  must  be
construed as referring to all the  categories  of  persons  preceding  these
words.




                                                  .....................………J.
                                                              [ S.A. BOBDE ]
NEW DELHI,
JANUARY 2, 2017
                                                         R E P O R T A B L E

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.37 OF 1992



AbHiram Singh                                        ...Appellant

                                 Versus



C.D. Commachen (dead) by Lrs. & Ors.                …respondents



                                    WITH

                        CIVIL APPEAL NO.8339 OF 1995



Narayan Singh                                           …Appellant



                                   Versus

Sunderlal Patwa                                …Respondent





                               J U D G M E N T

T.S. THAKUR, CJI.



1.    I have had  the  advantage  of  carefully  reading  the  separate  but
conflicting opinions expressed by my esteemed brothers Madan  B.  Lokur  and
Dr. D.Y. Chandrachud, JJ.  While both  the  views  reflect  in  an  abundant
measure, the deep understanding and scholarship of my noble  brothers,  each
treading  a  path  that  is  well  traversed  and  sanctified  by   judicial
pronouncements, the view taken by Lokur, J. appears to  me  to  be  more  in
tune with the purpose and intention behind the enactment of  Section  123(3)
of the Representation of Peoples Act,  1951.   I  would,  therefore,  concur
with the conclusions drawn by Lokur,  J.  and  the  order  proposed  by  His
Lordship with a few lines of my own in support of the same.

2.    The legislative history of Section 123(3) as it now forms part of  the
statute has been traced in the order proposed by brother  Lokur,  J.  I  can
make no useful addition to that  narrative  which  is  both  exhaustive  and
historically accurate.  I may, perhaps pick up  the  threads  post  1958  by
which time amendments to the Representation of People Act, 1951 had  brought
Section 123(3) to read as under:-

“Section 123

(1)   xxxxxx

(2)   xxxxxx

(3)   The systematic 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 on the grounds of caste, race, community or religion  or
the use of, or appeal to, religious symbols or the use  of,  or  appeal  to,
national symbols, such as the national flag  or  national  emblem,  for  the
furtherance of the prospects of that candidate’s election.”



3.    A close and careful reading of  the  above  would  show  that  for  an
appeal to constitute a corrupt practice it  had  to  satisfy  the  following
ingredients:



the appeal was made by the candidate, or his agent, or by any  other  person
with the consent of the candidate or his election agent;



the appeal was systematic;



the appeal so made was to vote or refrain from voting at an election on  the
ground of caste, race, community, or religion or the use  of  or  appeal  to
religious symbols or the use of  or  appeal  to  national  symbols  such  as
national flag or the national emblem; and



the appeal was for the furtherance  of  the  prospects  of  the  candidate’s
election, by whom or whose behalf the appeal was made.



4.    What is noteworthy is that  Section  123(3)  as  it  read  before  the
amendment of 1961, did not make any reference to the “candidate’s  religion”
or the “religion of his election agent” or the “person who  was  making  the
appeal with the consent of the candidate  or  his  agent”  or  even  of  the
‘voters’ leave alone the “religion of the opponent” of any  such  candidate.
All that was necessary to establish the commission  of  a  corrupt  practice
was a systematic appeal by a candidate, his  election  agent  or  any  other
person with the consent of any one of the  two,  thereby  implying  that  an
appeal in the name of religion, race, caste, community or  language  or  the
use of symbols referred to in Section 123(3)  was  forbidden  regardless  of
whose religion, race, caste,  community  or  language  was  invoked  by  the
person making the appeal.  All that was necessary  to  prove  was  that  the
appeal was systematic and the same was  made  for  the  furtherance  of  the
prospects of a candidate’s election.

5.    Then came the Bill for amendment of Section 123 of the Act  introduced
in the Lok Sabha on 10th August, 1961 which was aimed at widening the  scope
of corrupt practice and to provide for a new  corrupt  practice  and  a  new
electoral offence. The notes on clauses attached to the Bill indicated  that
the object behind the proposed  amendment  was  (a)  to  curb  communal  and
separatist tendencies in the country (b) to widen the scope of  the  corrupt
practice mentioned in sub-section (3) of Section 123 of the Act and  (c)  to
provide for a new corrupt practice as in sub-clause (b) of  clause  25.  The
proposed amendment was in the following words:

            “25. In Section123 of the 1951 Act, -

in clause (3) –

      the word “systematic” shall be omitted,

for the words “caste, race, community or  religion”,  the  words  “religion,
race, caste, community or language” shall be substituted;

(b) after clause (3), the following clause shall be inserted, namely: -

“(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 that candidate’s election.”-



6.    The bill proposing the  above  amendment  was  referred  to  a  Select
Committee who re-drafted the same for it was of the view that the  amendment
as proposed  did  not  clearly  bring  out  its  intention.   The  redrafted
provision  was  with  the  minutes  of  dissent  recorded   by    Ms.   Renu
Chakravartty and Mr. Balraj Madhok debated by the Parliament and enacted  to
read as under:

“(1) xxxxxxxxx

(2) xxxxxxxxxx

(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.

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



7.    The single noteworthy change that was by the above  amendment  brought
about in the law was the deletion of the word “systematic”  as  it  appeared
in Section 123 (3) before the amendment of 1961. The purpose underlying  the
proposed deletion obviously was to provide that an appeal  in  the  name  of
religion after the amendment would constitute a corrupt practice  even  when
the same was not systematic.  In other words, a single appeal on the  ground
of religion, race, caste, community  or  language  would  in  terms  of  the
amended provision be sufficient to annul an  election.   The  other  notable
change which the amendment brought about was the addition of the  words  “or
for prejudicially affecting the election of any candidate”  in  Section  123
(3) which words were not there in the earlier provision.

8.    That the purpose underlying the amendment was to enlarge the scope  of
corrupt practice was not disputed by learned counsel for the parties  before
us.  That the removal of the word  “systematic”  and  the  addition  of  the
words “prejudicially affecting the election of any candidate” achieved  that
purpose was also not disputed.  What was all the same strenuously argued  by
Mr. Shyam Diwan was that even when the  purpose  of  the  amendment  was  to
widen the scope of the corrupt practice under Section 123 (3)  it  had  also
restricted the same by using the word “his” before the  word  “religion”  in
the amended provision.  According to Mr. Diwan the amendment  in  one  sense
served to  widen  but  in  another  sense  restrict  the  scope  of  corrupt
practice.

9.    I have found it difficult to accept that submission.  In my  view  the
unamended provision extracted  earlier  made  any  appeal  in  the  name  of
religion, race, caste, community or language a corrupt  practice  regardless
of whose religion, race, caste, community or language was involved for  such
an appeal. The only other requirement was that such an appeal was made in  a
systematic manner for the furtherance  of  the  prospects  of  a  candidate.
Now, if that was  the  legal  position  before  the  amendment  and  if  the
Parliament intended to enlarge the scope of the corrupt practice  as  indeed
it did, the question of the scope being widened and restricted at  the  same
time did not arise.  There is nothing to suggest either in the statement  of
objects and reasons  or  contemporaneous  record  of  proceedings  including
notes accompanying the bill to show that the amendment was contrary  to  the
earlier position intended to permit appeals in the name of  religion,  race,
caste, community or language to be made except those made  in  the  name  of
the religion, race, caste, community or language of the  candidate  for  the
furtherance  of  whose  prospects  such  appeals   were   made.   Any   such
interpretation will not only  do  violence  to  the  provisions  of  Section
123(3) but also go against the avowed purpose of the  amendment.   Any  such
interpretation will artificially restrict the scope of corrupt practice  for
it will make permissible what was clearly impermissible under the  unamended
provision.  The correct approach, in my opinion, is to ask  whether  appeals
in the name of religion, race,  caste,  community  or  language  which  were
forbidden  under  the  unamended  law  were  actually  meant  to   be   made
permissible subject only to the condition  that  any  such  appeal  was  not
founded  on  the  religion,  race,  caste,  community  or  language  of  the
candidate for whose benefit the same was made. The answer to  that  question
has to be in the negative.  The law as it stood  before  the  amendment  did
not permit an appeal in the name  of  religion,  race,  caste  community  or
language,  no  matter  whose  religion,  race,  community  or  language  was
invoked. The amendment did not intend to relax or remove  that  restriction.
On the contrary it intended to widen the scope of the  corrupt  practice  by
making even a ‘single such appeal’ a  corrupt  practice  which  was  not  so
under the unamended provision. Seen  both  textually  and  contextually  the
argument that the term “his religion” appearing  in  the  amended  provision
must be interpreted so as to confine the same to  appeals  in  the  name  of
“religion of the candidate” concerned alone does not stand  closer  scrutiny
and must be rejected.

10.   There is another angle from which the question  of  interpretation  of
Section 123(3) can be approached.   Assuming  that  Section  123(3),  as  it
appears, in the Statute Book is capable of two possible interpretations  one
suggesting that a corrupt practice will be committed only if the  appeal  is
in the name of the candidate’s religion, race,  community  or  language  and
the other suggesting that regardless of whose religion, race,  community  or
language is invoked an appeal in the name of any one of those would  vitiate
the election. The question is which one of the two interpretations ought  to
be preferred by the Court keeping in view the constitutional ethos  and  the
secular character of our polity.

11.   That India is a secular state is no  longer  res  integra.  Secularism
has been declared by this Court to be one  of  the  basic  features  of  the
Constitution.  A long line of decisions  delivered  by  this  Court  on  the
subject have explained the meaning of the term ‘secular’  and  ‘secularism’,
but before we refer to the judicial pronouncements on  the  subject  we  may
gainfully  refer  to  what                           Dr.  Radhakrishnan  the
noted statesman/philosopher had to say about India being a secular State  in
the following passage:

“When India is said to be a secular State, it does not mean that  we  reject
reality of an unseen spirit or the relevance of religion to life or that  we
exalt irreligion.  It  does  not  mean  that  Secularism  itself  becomes  a
positive religion or that the  State  assumes  divine  prerogatives.  Though
faith in the Supreme is the basic principle  of  the  Indian  tradition, the
Indian State  will  not  identify  itself  with  or  be  controlled  by  any
particular  religion. We  hold  that  no  one  religion  should   be   given
preferential status, or unique distinction, that no one religion  should  be
accorded special privileges in national life or international relations  for
that would be a violation of the basic principles of democracy and  contrary
to the best interests of religion and government.  This  view  of  religious
impartiality, of comprehension and forbearance,  has  a  prophetic  role  to
play within the national and international life. No group of citizens  shall
arrogate to itself rights and privileges, which  it  denies  to  others.  No
person should suffer  any  form  of  disability  or  discrimination  because
of his religion but all like should be free to share to the  fullest  degree
in the common life. This is the basic principle involved in  the  separation
of Church and State.”

                                                         [emphasis supplied]



12.   Dr. B.R. Ambedkar also explained the significance of  ‘secular  state’
in the Parliamentary debate in the following words:

“A secular state does not mean that we shall  not  take  into  consideration
the religious sentiments of the people. All that a secular  State  means  is
that this parliament  shall  not  be  competent  to  impose  any  particular
religion upon the rest of the people”


13.   In Saifuddin Saheb v. State of Bombay AIR 1962 SC 853  a  Constitution
bench of this Court described secularism thus :-

“50. These Articles embody the principle of religious  toleration  that  has
been the characteristic feature of Indian civilization  from  the  start  of
history, the instances and  periods  when  this  feature  was  absent  being
merely temporary aberrations. Besides, they serve to emphasize  the  secular
nature of the Indian democracy which the founding fathers considered  should
be the very basis of the Constitution.”



14.   Again in the Ahmedabad St. Xavier's College Society and Anr. v.  State
of Gujarat and Anr.  (1974)1  SCC  717  a  Nine-Judge  bench  explained  the
secular character of the Indian Constitution and said:

 “75.  …….. There is no mysticism in the secular  character  of  the  State.
Secularism is neither anti-God nor pro-God; it treats alike the devout,  the
agnostic and the atheist. It eliminates God from the matters  of  the  State
and ensures that no one shall be discriminated  against  on  the  ground  of
religion.”

15.    So also in Indira Nehru Gandhi v. Shri Raj Narain (1975)  Suppl.  SCC
1 it was observed::

 “664..  …….. The State shall have no religion of its own  and  all  persons
shall be equally entitled to freedom of conscience and the right  freely  to
profess, practice and propagate religion.”



16.   In S.R. Bommai v. Union of India 1994 (3) SCC 1,  Sawant  J.  speaking
for himself and Kuldeep Singh J. in para 145  of  the  judgment  elaborately
referred to several provisions of the Constitution  including  Articles  25,
26, 29, 30, 44 and 51A and  declared  that  these  provisions  prohibit  the
State from identifying with any particular religion, sect  or  denomination.
Drawing support from what jurists have said about the concept of  secularism
in the Indian Constitution, the Court explained the legal position thus:

“148.One thing which  prominently  emerges  from  the  above  discussion  on
secularism under our Constitution is  that  whatever  the  attitude  of  the
State towards the religions, religious  sects  and  denominations,  religion
cannot be mixed with any  secular  activity  of  the  State.  In  fact,  the
encroachment of religion into secular  activities  is  strictly  prohibited.
This is evident from the provisions of the Constitution  to  which  we  have
made reference above. The State's tolerance of religion  or  religions  does
not make it either a religious or a theocratic State. When the State  allows
citizens to practise  and  profess  their  religions,  it  does  not  either
explicitly  or  implicitly allow  them  to  introduce  religion  into   non-
religious and secular activities of the State. The freedom and tolerance  of
religion is only to the extent  of  permitting  pursuit  of  spiritual  life
which is different from the secular life. The latter falls in the  exclusive
domain of the affairs of the State. This is also clear from Sub-section  [3]
of Section 123  of  the  Representation  of  the  Peoples  Act,  1951  which
prohibits an 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 on the ground of his religion, race, caste,  community
or language or the use of or appeal to religious symbols.  Sub-section  [3A]
of the same section prohibits the promotion or attempt to  promote  feelings
of enmity and hatred between different classes of the citizens of  India  on
the 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.  A
breach of the provisions of the said Sub-sections [3] and  [3A]  are  deemed
to be corrupt practices within the meaning ofthe said section.”

                                                         (Emphasis supplied)



17.   The Court declared  that  whatever  be  the  States  attitude  towards
religious sects and denominations, a religious activity  cannot  be  allowed
to mix with the secular activities  of  the  State.   The  Court  held  that
encroachment of religious activities in the secular activities of the  State
was prohibited as  is  evident  from  the  provisions  of  the  Constitution
themselves. The Court observed:

“148.One thing which  prominently  emerges  from  the  above  discussion  on
secularism under our Constitution is  that  whatever  the  attitude  of  the
State towards the religions, religious  sects  and  denominations,  religion
cannot be mixed with any  secular  activity  of  the  State.  In  fact,  the
encroachment of religion into secular  activities  is  strictly  prohibited.
This is evident from the provisions of the Constitution  to  which  we  have
made reference above.”

                                                         (Emphasis Supplied)

18.   The  Court  drew  a  distinction  between  freedom  and  tolerance  of
religion on the one hand and the secular life of the State on the other  and
declared that the later falls in the exclusive domain of the State.

19.   Speaking for himself and Agarwal J., Jeevan Reddy J.,  held  that  the
Constitution does not recognize or permit mixing religion  and  State  power
and that the two must be kept apart.  The Court said:

“310…….If the Constitution requires the State to be secular in  thought  and
action, the same requirement attaches to  political  parties  as  well.  The
Constitution does not recognise, it does not  permit,  mixing  religion  and
State  power.  Both  must  be  kept  apart.  That  is   the   constitutional
injunction. None can say otherwise so  long  as  this  Constitution  governs
this  country.  Introducing  religion  into  politics  is  to  introduce  an
impermissible  element  into  body  politic  and   an   imbalance   in   our
constitutional system. If a political party espousing a particular  religion
comes to power, that religion tends to become,  in  practice,  the  official
religion. All other religions come to acquire a  secondary  status,  at  any
rate, a less favourable position. This  would  be  plainly  antithetical  to
Articles 14 to 16,  25  and  the  entire  constitutional  scheme  adumbrated
hereinabove. Under  our  Constitution,  no   party   or   Organisation   can
simultaneously be a political and a religious party.”



20.   Relying upon the pronouncement of SR  Bommai  (supra)  this  Court  in
M.P. Gopalakrishnan Nair and Anr. v. State of Kerala and Ors. (2005) 11  SCC
45 declared that the judicial process must promote  citizen’s  participation
in the electoral process free from any corrupt practice in the  exercise  of
their adult franchise.  The Court  held  that  rise  of  fundamentalism  and
communalism of politics encouraged the separatist and  divisive  forces  and
become breeding grounds for  national  disintegration  and  failure  of  the
parliamentary democratic system.

21.   In Dr. Vimal (Mrs.) v. Bhaguji & Ors. (1996)  9  SCC  351  this  Court
emphasized the need for interpreting  Section  123(3)  and  123(3A)  of  the
Representation of Peoples Act,  1951  to  maintain  national  integrity  and
unity amongst the citizens  of  the  country  and  maintaining  the  secular
character of the society to which we belong.  The Court said:

“20.We may also indicate here that in order to maintain  national  integrity
and amity amongst the citizens of the country and to  maintain  the  secular
character of the pluralistic society to which we belong section 123 and  123
(3A) of the Representation  Act  have  been  incorporated.  For  maintaining
purity in the election process and for maintaining peace and harmony in  the
social fabric, it becomes essentially  necessary  not  only  to  indict  the
party  to  an  election  guilty  of  corrupt  practice  but  to   name   the
collaborators of such corrupt practice if there be any”.



22.   In Ambika Sharan Singh Vs. Mahant Mahadeva and Giri and Others  (1969)
3 SCC 492, the Court held:

“12. Indian leadership has long condemned electoral campaigns on  the  lines
of caste and community as being destructive  of  the  country’s  integration
and  the  concept  of  secular  democracy  which  is  the   basis   of   our
Constitution.  It is this condemnation which is  reflected  in  Section  123
(3) of the Act.  Inspite of the repeated condemnation, experience has  shown
that where there is such  a  constituency  it  has  been  unfortunately  too
tempting for a candidate to resist appealing to sectional elements  to  cast
their votes on caste basis.”



23.   The  upshot  of  the  above  discussion  clearly  is  that  under  the
constitutional scheme mixing religion with State power  is  not  permissible
while freedom to practice profess and propagate religion of one’s choice  is
guaranteed.  The State being secular in character will not  identify  itself
with any one of the religions or religious denominations.  This  necessarily
implies that religion will not play  any  role  in  the  governance  of  the
country which must at all times be secular in nature.  The elections to  the
State legislature or to the Parliament or for that matter or any other  body
in the State is a secular exercise just as  the  functions  of  the  elected
representatives must be secular in both outlook and  practice.   Suffice  it
to say  that  the  Constitutional  ethos  forbids  mixing  of  religions  or
religious considerations with the secular  functions  of  the  State.   This
necessarily implies that interpretation of any statute must not  offend  the
fundamental mandate under the Constitution.   An  interpretation  which  has
the effect of eroding or diluting the constitutional  objective  of  keeping
the State and its activities free from religious considerations,  therefore,
must be avoided.  This Court has in several pronouncements ruled that  while
interpreting an  enactment,  the  Courts  should  remain  cognizant  of  the
Constitutional  goals  and  the  purpose  of  the  Act  and  interpret   the
provisions accordingly.

24.   In Kedar Nath Vs. State of Bihar (AIR 1962  SC  955),  a  Constitution
bench of this Court declared  that  while  interpreting  an  enactment,  the
Court should have regard not merely to the  literal  meaning  of  the  words
used, but also  take  into  consideration  the  antecedent  history  of  the
legislation, its purpose  and  the  mischief  it  seeks  to  address.   More
importantly, the Court observed:

“26.  It is well-settled that if certain provisions of law construed in  one
way  would  make  them  consistent  with  the  Constitution,   and   another
interpretation would render them unconstitutional, the Court would  lean  in
favour of the former construction”



25.   Extending the  above  principle  further  one  can  say  that  if  two
constructions  of  a  statute  were  possible,   one   that   promotes   the
constitutional objective ought to be preferred over the other that does  not
do so.

26.   To somewhat similar effect is the decision of this Court in  State  of
Karnataka Vs. Appa Balu Ingale and Others [1995] Supp.4 SCC 469  where  this
Court held that as the vehicle of transforming the nation’s life, the  Court
should respond to the nation’s need and interpret the  law  with  pragmatism
to further public welfare  and  to  make  the  constitutional  animations  a
reality.  The  Court  held  that  Judge’s  should  be   cognizant   of   the
constitutional goals and remind themselves of the purpose of the  Act  while
interpreting any legislation, the Court said:


“35. The judges, therefore, should respond to the human situations  to  meet
the felt necessities of the time  and  social  needs;  make  meaningful  the
right to life and give effect to  the  Constitution  and  the  will  of  the
legislature. This Court as the vehicle of  transforming  the  nation’s  life
should respond to the nation’s needs and interpret the law  with  pragmatism
to further public welfare to make the constitutional animations  a  reality.
Common sense has always served in the court’s ceaseless striving as a  voice
of reason to maintain the blend of change and continuity of order  which  is
sine qua non for stability in the  process  of  change  in  a  parliamentary
democracy. In interpreting the Act, the judge should  be  cognizant  to  and
always keep at the back of his/her mind the  constitutional  goals  and  the
purpose of the Act and interpret the provisions of  the  Act  in  the  light
thus shed to annihilate untouchability; to accord  to  the  Dalits  and  the
Tribes right to equality;  give  social  integration  a  fruition  and  make
fraternity a reality.”



27.   In Vipulbhai M.  Chaudhary  Vs.  Gujarat  Cooperative  Milk  Marketing
Federation Ltd. and Ors. (2015) 8 SCC 1,  this  Court  held  that  in  cases
where the legislation or bye-laws are silent in a given  aspect,  the  Court
will have to read the constitutional requirements into the  enactment.   The
Court said:

“46.  In the background of the constitutional mandate, the question  is  not
what the statute does say but what the statute must say. If the Act  or  the
Rules or the bye-laws do not say what  they  should  say  in  terms  of  the
Constitution, it is the duty of the court to read the constitutional  spirit
and concept into the Acts.”



28.    There  is  thus  ample  authority  for  the  proposition  that  while
interpreting a legislative provision, the Courts must remain  alive  to  the
constitutional provisions and ethos and that  interpretations  that  are  in
tune with such provisions and ethos  ought  to  be  preferred  over  others.
Applying that principle to the case at hand,  an  interpretation  that  will
have the effect of removing the religion or  religious  considerations  from
the secular character of the State or state activity ought to  be  preferred
over an interpretation which may allow such considerations to enter,  effect
or influence such activities.  Electoral  processes  are  doubtless  secular
activities of the State. Religion can have no place in such  activities  for
religion is a matter personal to  the  individual  with  which  neither  the
State nor any  other  individual  has  anything  to  do.   The  relationship
between man and God and the means which humans adopt  to  connect  with  the
almighty are matters of individual preferences and choices.   The  State  is
under an obligation to allow complete  freedom  for  practicing,  professing
and propagating religious faith to which  a  citizen  belongs  in  terms  of
Article 25 of the Constitution of India but the freedom  so  guaranteed  has
nothing to do with secular  activities  which  the  State  undertakes.   The
State can and indeed has in terms of Section 123(3)  forbidden  interference
of religions and religious beliefs with secular  activity  of  elections  to
legislative bodies. To sum up:

29.   An appeal in the name of religion, race, caste, community or  language
is impermissible under the Representation of the People Act, 1951 and  would
constitute a corrupt practice sufficient to  annul  the  election  in  which
such an appeal was made regardless whether the appeal was  in  the  name  of
the candidate’s religion or the religion of the election agent  or  that  of
the opponent or that of the voter’s.  The sum total of Section 123 (3)  even
after amendment is that an appeal in the  name  of  religion,  race,  caste,
community or language is forbidden even when the appeal may not  be  in  the
name of the religion, race, caste, community or language  of  the  candidate
for whom it has been made.  So interpreted religion, race, caste,  community
or language would not be allowed to play any role in the  electoral  process
and should an appeal be made on any of those considerations, the same  would
constitute a  corrupt  practice.     With  these  few  lines  I  answer  the
reference in terms of the order proposed  by Lokur, J.




                                                           …………………….…..…CJI.
                                                               (T.S. THAKUR)

New Delhi
January 2, 2017

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL No. 37 OF 1992


ABHIRAM SINGH            .....APPELLANT



                                   Versus



C.D. COMMACHEN (DEAD)           .....RESPONDENTS
BY LRS. & ORS


                                    WITH



                        CIVIL APPEAL No. 8339 OF 1995




                               J U D G M E N T



Dr D Y CHANDRACHUD, J

A     The reference

          This reference to a Bench of seven Judges turns upon  the  meaning
of a simple pronoun : “his” in Section 123(3) of the Representation  of  the
People Act, 1951. A word, it is said, defines a  universe.  Words  symbolise
the  human  effort  to  contain  the  infinity   which   dwells   in   human
relationships into finite boundaries which distinguish the  known  from  the
unknown,  the  familiar  from  the  unfamiliar  and  the  certain  from  the
uncertain. That so much should turn upon the meaning which we  assign  to  a
single word is reason enough to guard against an assumption that  the  issue
which  we  confront  is  a  matter  entirely  of  grammar  or  of  statutory
interpretation. Underlying the surface of this case, are profound  questions
about the course of democracy in our  country  and  the  role  of  religion,
race, caste, community and language in political discourse.  Each  of  these
traits  or  characteristics  defines  identity  within  the  conception   of
nationhood and citizenship. Quibbles over the meaning of a word  apart,  the
interpretation that will be adopted by the court will define the  boundaries
between electoral politics on the one  hand  and  individual  or  collective
features grounded in religion, race, caste, community and  language  on  the
other.
2     The reference before this Bench of seven Judges arises in this way :

In Narayan Singh v. Sunderlal Patwa[37], a Constitution Bench of this  Court
observed in its order dated 28 August 2002 that the High Court in that  case
had construed Section 123(3)  “to  mean  that  it  will  not  be  a  corrupt
practice when the voters belonging to  some  other  religion  are  appealed,
other than the religion of the candidate.”  This construction was  supported
by three Judge Bench decisions of this  Court  in  Kanti  Prasad  Yagnik  v.
Purshottamdas  Patel[38]  and  Dr  Ramesh  Yashwant  Prabhoo  v.   Prabhakar
Kashinath Kunte[39]. There were observations of the  Constitution  Bench  in
Kultar Singh v. Mukhtar Singh[40] bearing on the interpretation  of  Section
123(3). In the referring order in Naryan Singh (supra), this Court  observed
that in the nine Judge Bench decision in S R Bommai v. Union  of  India[41],
there were certain observations which were  contrary  to  the  decisions  of
the three Judge Benches noted above. The order of reference was  founded  on
the following reasons :



“2…the very object of amendment in  introducing  Act  40  of  1961  was  for
curbing the communal and separatist tendency in the  country  and  to  widen
the scope of corrupt practice mentioned in sub-section (3)  of  Section  123
of the Act….

3. As it  appears,  under  the  amended  provision,  the  words  “systematic
appeal” in the pre-amended provision were  given  a  go-by  and  necessarily
therefore the scope has been widened but by introducing the word  “his”  and
the interpretation  given  to  the  aforesaid  provision  in  the  judgments
referred earlier, would give it  a  restrictive  meaning.  In  other  words,
while under the pre-amended provision it would be  a  corrupt  practice,  if
appealed by the candidate, or his agent or  any  other  person  to  vote  or
refrain from voting on the grounds of caste, race,  community  or  religion,
it would not be so under the amended provision  so  long  as  the  candidate
does not appeal to the voters on the ground of his religion even  though  he
appealed to the voters on the ground of  religion  of  voters.  In  view  of
certain observations made in the Constitution Bench decision of  this  Court
in Kultar Singh Case we think it  appropriate  to  refer  the  matter  to  a
larger Bench of seven Judges to consider the matter.”

3     The present civil appeal was initially referred by a  Bench  of  three
judges to a Constitution Bench on 16 April 1996[42]. When the  civil  appeal
came up before a Constitution Bench[43], one of  the  questions  which  fell
for consideration was the interpretation of Section  123(3).  Following  the
reference to seven Judges made in Narayan Singh, the  present  civil  appeal
was also referred on the question of the interpretation of  Section  123(3).
The order of reference dated 30 January 2014 explains the limited nature  of
the reference, thus :

“4. Be that as it may, since one of the questions involved  in  the  present
appeal is already referred to a larger Bench of seven Judges,  we  think  it
appropriate  to  refer  this  appeal   to   a   limited   extent   regarding
interpretation of sub-section (3) of Section  123  of  the  1951  Act  to  a
larger Bench of seven Judges.”



The reference to seven Judges is limited to the  interpretation  of  Section
123(3).

B     Representation of the People Act, 1951

4     Part VII of the Representation of the  People  Act,  1951  deals  with
corrupt practices and electoral offences. Chapter 1 of Part VII  contains  a
provision, Section 123, which defines corrupt practices for the purposes  of
the Act. Since its amendment in 1961,  Section  123(3)[44],  to  the  extent
that is relevant to the present case, provides as follows :

“123(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.”




Together with the substitution of sub-section (3),  the  amending  enactment
introduced sub-section 3A, in the following terms :

“123(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.”



5     Electoral offences are provided in Chapter 3. Among them,  in  Section
125, is promoting or attempting to promote  feelings  of  enmity  or  hatred
between different classes of the citizens, in connection  with  an  election
under the Act, on grounds of religion, race, caste, community and  language.


6     At the conclusion of the trial  of  an  election  petition,  the  High
Court may under Section 98(b)[45] declare the election of any or all of  the
returned candidates to be void. One of the grounds on which an election  can
be declared void in Section 100(1)(b) is :

“that any corrupt practice has been committed by a returned candidate or  by
his election agent or by any other person with the  consent  of  a  returned
candidate or his election agent.”



7     At the time when the High Court makes an order under  Section  98,  it
has to also make an order under Section 99 stating whether a charge made  in
the election petition, of a corrupt practice having been  committed  at  the
election has been proved, the nature of the corrupt practice and  the  names
of all persons who have been proved to have committed any corrupt  practice.
The consequence of a finding by the  High  Court  of  the  commission  of  a
corrupt practice in Section 99, is a  disqualification  under  Section  8(A)
for a period of upto six years. Section 8(A) is in the following terms :

“8(A). Disqualification on ground of corrupt practices –  (1)  The  case  of
every person found guilty of a corrupt practice by an  order  under  Section
99 shall be submitted, [as soon as may be within a period  of  three  months
from the date such order takes effect], by such  authority  as  the  Central
Government may specify in this behalf, to the  President  for  determination
of the question as to whether such person shall be disqualified and  if  so,
for what period: Provided that the  period  for  which  any  person  may  be
disqualified under this sub-section shall in no case exceed six  years  from
the date on which the order made in relation to him under section  99  takes
effect;

(2) Any person who stands disqualified under section 8A of this  Act  as  it
stood immediately before the commencement of the Election  Laws  (Amendment)
Act, 1975 (40 of 1975), may, if the period of such disqualification has  not
expired, submit a  petition  to  the  President  for  the  removal  of  such
disqualification for the unexpired portion of the said period;

(3) Before giving his decision on any question mentioned in sub-section  (1)
or on any petition submitted under  sub-section  (2),  the  President  shall
obtain the opinion of the Election Commission on such question  or  petition
and shall act according to such opinion.”



8     Section 11(A)(2) stipulates that any person who is disqualified  by  a
decision of the President under sub-section (1)  of  Section  8(A)  for  any
period shall be  disqualified  for  the  same  period  from  voting  at  any
election.

9     Section 16 of the Representation of  the  People  Act,  1951  provides
that where a person is disqualified from voting under the provisions of  any
law relating to corrupt practices and  other  offences  in  connection  with
elections,  that  person  shall  be  disqualified  for  registration  in  an
electoral  roll.  Moreover,  if  a  person  has  been   disqualified   after
registration in an electoral  roll,  the  name  of  that  person  is  to  be
immediately struck off the electoral roll in which it  was  included.  These
provisions in the matter of disqualification emanate from Article  102(1)(e)
of the Constitution under which a person shall  be  disqualified  for  being
chosen as and for being a Member of either House of Parliament “if he is  so
disqualified by or under any law made by Parliament”.  A  similar  provision
in relation to the state legislatures is contained in Article  191(1)(e)  of
the Constitution.

10           The  consequence  of  a  finding  of  the  High  Court  at  the
conclusion of the trial of an election petition that a person is  guilty  of
a corrupt practice under Section 123  is  serious.  A  disqualification  can
ensue for a period of upto six years. A person  who  has  been  disqualified
stands debarred from voting at any election for the  same  period.  The  ban
upon the entry of the name of such a person in an  electoral  roll  (or  the
striking off of the name  when  it  was  included  in  the  electoral  roll)
disenfranchises such a person. The person ceases to be  an  elector  and  is
not qualified to fill a seat in Parliament or  the  state  legislatures  for
the period during which the disqualification operates.
C.    Strict construction

11    Election petitions alleging corrupt practices  have  a  quasi-criminal
character. Where a statutory  provision  implicates  penal  consequences  or
consequences of a quasi-criminal character, a  strict  construction  of  the
words  used  by  the  legislature  must  be  adopted.  The  rule  of  strict
interpretation in regard to penal statutes was enunciated in a  judgment  of
a  Constitution  Bench  of  this  Court  in  Tolaram  Relumal  v.  State  of
Bombay[46] where it was held as follows :

“...It may be here observed that the provisions of section 18(1)  are  penal
in nature and it is a well settled rule of construction  of  penal  statutes
that if two possible and reasonable constructions can be put  upon  a  penal
provision, the Court must lean towards that construction which  exempts  the
subject from penalty rather than the one which imposes penalty.  It  is  not
competent to the Court to stretch the meaning of an expression used  by  the
Legislature in order to carry out the  intention  of  the  Legislature.   As
pointed out by Lord Macmillan in London and North  Eastern  Railway  Co.  V.
Berriman,  “where  penalties  for  infringement  are  imposed  it   is   not
legitimate to stretch the  language  of  a  rule,  however  beneficient  its
intention, beyond the fair and ordinary meaning of its language.” (Id at  p.
164)



This principle has been consistently applied by this Court while  construing
the ambit  of  the  expression  ‘corrupt  practices’.  The  rule  of  strict
interpretation has been adopted in Amolakchand  Chhazed  v.  Bhagwandas[47].
A Bench of three Judges of this Court held thus :

“12....Election petitions alleging corrupt practices are  proceedings  of  a
quasi-criminal nature and the onus is  on  the  person  who  challenges  the
election   to   prove   the   allegations    beyond    reasonable    doubt.”
           (Id at p. 572)



12    The standard of proof is hence much higher  than  a  preponderance  of
probabilities which operates in civil trials. The standard of  proof  in  an
election trial veers close to that  which  guides  a  criminal  trial.  This
principle was applied in another decision of three Judges of this  Court  in
Baldev  Singh  Mann  v.  Gurcharan  Singh   (MLA)[48]   in   the   following
observations:

“8. It is well-settled that an allegation of  corrupt  practice  within  the
meaning of sub-sections (1) to (8) of Section 123 of the Act,  made  in  the
election petition are regarded quasi-criminal in nature requiring  a  strict
proof of the same because the consequences are not  only  very  serious  but
also penal in nature. It may be pointed out that on the proof of any of  the
corrupt practices as alleged in the election petition it  is  not  only  the
election of the returned candidate which is declared void and set aside  but
besides the  disqualification  of  the  returned  candidate,  the  candidate
himself or his agent or any other person as the case may  be,  if  found  to
have committed corrupt practice may  be  punished  with  imprisonment  under
Section 135-A of the Act. It is for these reasons  that  the  Court  insists
upon a strict proof of such  allegation  of  corrupt  practice  and  not  to
decide the  case  on  preponderance  or  probabilities.  The  evidence  has,
therefore, to be judged having regard  to  these  well-settled  principles.”
(Id at p.746)



In  Thampanoor  Ravi  v.  Charupara  Ravi[49],   in   the   context   of   a
disqualification under Article 191 of the Constitution,  on  the  ground  of
being declared an insolvent, this Court observed as follows :

“19.  The learned Judge noticed that if a  person  is  not  to  be  held  an
insolvent as in ordinary parlance it  would  result  in  non-application  of
disqualification even if the court is satisfied that the returned  candidate
is not in a position  to  repay  debts  and  could  be  adjudged  to  be  an
insolvent.  Article 191(1)(c) does not  contemplate  mere  impecuniosity  or
incapacity of a person to repay one’s  debts  but  he  should  not  only  be
adjudged an insolvent but also  remain  undischarged.   Such  a  contingency
could only arise under the insolvency  law.   Article  191(1)(c)  refers  to
disqualifications  of  a  person  from  getting   elected   to   the   State
Legislature.  The conditions for  disqualification  cannot  be  enlarged  by
importing  to  it  any  meaning  other  than   permissible   on   a   strict
interpretation of expressions used therein for what we are dealing  with  is
a case  of  disqualification.   Whenever  any  disqualification  is  imposed
naturally the right of a citizen is cut down and  in  that  event  a  narrow
interpretation is required.   Therefore,  the  liberal  view  taken  by  the
learned Judge to the contrary does not appear to be correct.”  (Id at p.87)



In Bipinchandra Parshottamdas Patel  (Vakil)  v.  State  of  Gujarat[50],  a
Bench of three Judges of this Court restated the principle in the  following
observations :

“31. It is trite that a law leading to disqualification to  hold  an  office
should be clear and unambiguous like a penal law.  In the  event  a  statute
is  not  clear,  recourse  to  strict  interpretation  must  be   made   for
construction  thereof.   In  his  classic  work   The   Interpretation   and
Application of Statutes Read Dickerson states:

“(1)  The court will not extend the law beyond its meaning to take  care  of
a broader legislative purpose.  Here ‘strict’ means merely  that  the  court
will refrain from  exercising  its  creative  function  to  apply  the  rule
announced in the statute to situations not covered by it, even  though  such
an extension would help to advance the  manifest  ulterior  purpose  of  the
statute. Here, strictness relates not to the meaning of the statute  but  to
using the statute as a basis for judicial law-making by analogy with it;

(2)   The court will resolve an evenly balanced uncertainty  of  meaning  in
favour of a criminal defendant,  the  common  law,  the  ‘common  right’,  a
taxpayer, or sovereignty;

(3)   The court will so resolve a significant uncertainty  of  meaning  even
against the weight of probability;

(4)   The court will adhere closely to the literal meaning  of  the  statute
and infer nothing that would extend its reach;

(5)   Where the manifest purpose of the statute, as  collaterally  revealed,
is narrower than its express meaning, the court  will  restrict  application
of the statute to  its  narrower  purpose.   This  differs  from  the  Riggs
situation in that the narrow purpose is  revealed  by  sources  outside  the
statute and its proper context.” (Id at p. 653)



Construing the provisions of Section 123, a Bench  of  two  Judges  of  this
Court in S Subramaniam Balaji v. State of Tamil Nadu[51], observed thus :

“61.2….Section  123  and  other  relevant  provisions,   upon   their   true
construction, contemplate corrupt practice by individual  candidate  or  his
agent.  Moreover, such corrupt  is  directly  linked  to  his  own  election
irrespective of the question whether his party forms a  Government  or  not.
The provisions  of  the  RP  Act  clearly  draw  a  distinction  between  an
individual candidate put up by a political  party  and  the  candidate  from
resorting to promises,  which  constitute  a  corrupt  practice  within  the
meaning of Section 123 of the RP Act. The provisions of the said  Act  place
no fetter on


the power of  the  political  parties  to  make  promises  in  the  election
manifesto.” (Id at p. 694)



This reflects the settled legal position.



D.    Construing Section 123(3)

13     Essentially,  Section  123(3)  can  be  understood  by  dividing  its
provisions into three parts. The first part describes the person making  the
appeal, the second part describes what the appeal  seeks  to  achieve  while
the third part relates to the ground or basis reflected in the  second.  The
first part of the provision postulates an appeal. The appeal could be :

(i)   by a candidate; or

(ii)  by the agent of a candidate; or

(iii) by another person with the consent of a candidate; or

(iv)  by another person with the  consent  of  the  election  agent  of  the
candidate.



Where the person making the appeal  is  not  the  candidate  or  his  agent,
consent of the candidate or his agent is mandated.

14    The appeal is to vote or refrain  from  voting  for  any  person.  The
expression ‘any person’ is evidently a reference to a  candidate  contesting
the election. The third part speaks of the basis of the appeal.  The  appeal
is to vote or refrain from voting for  any  person  on  the  ground  of  his
religion, race, caste, community or language. In the latter part of  Section
123(3), the corrupt practices consist in the use of or appeal  to  religious
symbols or national symbols such as the national  flag  or  emblem  for  (i)
the    furtherance of  the
prospects of the election of that candidate or (ii) prejudicially  affecting
the election of any candidate.

15    Section 123(3) evinces a Parliamentary  intent  to  bring  within  the
corrupt practice an appeal by a candidate or his agent  (or  by  any  person
with the consent of the candidate or his election agent) to either  vote  or
refrain from voting for any person. The positive element is embodied in  the
expression “to vote”. What it means is that there is an appeal  to  vote  in
favour of a particular candidate.  Negatively, an appeal not to vote  for  a
rival candidate is also within the text of the provision. An appeal to  vote
for a candidate is made to enhance the prospects of  the  candidate  at  the
election.  An  appeal  to  refrain  from  voting  for  a  candidate  has   a
detrimental effect on the election prospects of a  rival  candidate.  Hence,
in the first instance, there is an appeal by a candidate (or  his  agent  or
by another person with the consent of the election  agent).  The  appeal  is
for soliciting votes in favour of the candidate or to  refrain  from  voting
for  a  rival  candidate.  The  expression  ‘his’  means  belonging  to   or
associated with a person previously mentioned. The expression “his” used  in
conjunction  with  religion,  race,  caste,  community  or  language  is  in
reference to the  religion,  race,  caste,  community  or  language  of  the
candidate (in whose favour the appeal to cast a vote is made) or that  of  a
rival candidate  (when  an  appeal  is  made  to  refrain  from  voting  for
another). It is impossible to construe sub-section (3) as referring  to  the
religion, race, caste, community or language of the  voter.  The  provision,
it is significant, adverts to “a candidate”  or  “his  agent”,  or  “by  any
other person with the consent of a candidate or his election

agent”. This is a reference to the person making the appeal. The  next  part
of the provision contains a reference to the appeal being made “to  vote  or
refrain from voting for any person”. The vote is solicited for  a  candidate
or there  is  an  appeal  not  to  vote  for  a  candidate.  Each  of  these
expressions is in the singular. They are  followed  by  expression  “on  the
ground of his religion…”. The expression “his  religion…”  must  necessarily
qualify what precedes; namely,  the  religion  of  the  candidate  in  whose
favour a vote is sought or that of another candidate against whom  there  is
an appeal to refrain from voting. ‘His’ religion  (and  the  same  principle
would apply to ‘his’ race, ‘his’ caste, ‘his’ community, or ‘his’  language)
must hence refer to the religion of the person in  whose  favour  votes  are
solicited or the person against whom there is an appeal for refraining  from
casting a ballot.

16        Section  123(3)  uses  the  expression  “on  the  ground  of   his
religion…”. There are two significant expressions here (besides ‘his’  which
has been considered above). The first is ‘the’  and  the  second,  “ground”.
The expression ‘the’ is a definite article used  especially  before  a  noun
with a specifying or particularizing effect. ‘The’ is  used  as  opposed  to
the indefinite or generalizing forces  of  the  indefinite  article  ‘a’  or
‘an’. The expression ‘ground’ was substituted in Section 123(3) in place  of
‘grounds’, following the amendment  of 1961. Read together, the  words  “the
ground of his religion…” indicate that what the legislature  has  proscribed
is an appeal to vote for a candidate or to refrain from voting  for  another
candidate exclusively  on  the  basis  of  the  religion  (or  race,  caste,
community or language) of the candidate or a rival candidate.
‘The ground’ means solely or exclusively on  the  basis  of  the  identified
feature or circumstance.

17    Is there  a  valid  rationale  for  Parliament,  in  adopting  Section
123(3), to focus on an appeal to the religion  of  the  candidate  or  of  a
rival candidate? There  is  a  clear  rationale  and  logic  underlying  the
provision. A person  who  contests  an  election  for  being  elected  as  a
representative of the people either to Parliament or the state  legislatures
seeks to  represent  the  entire  constituency.  A  person  who  is  elected
represents the whole of the constituency. Our Constitution has rejected  and
consciously did not adopt separate electorates. Even  where  a  constituency
is reserved for a particular category, the elected candidate represents  the
constituency as a whole and not merely persons who belong to  the  class  or
category for whom the seat is  reserved.  A  representative  of  the  people
represents  people  at  large  and  not  a  particular  religion,  caste  or
community. Consequently, as a matter of legislative  policy  Parliament  has
mandated that the religion of a candidate  cannot  be  utilized  to  solicit
votes at the election[52].Similarly,  the  religion  of  a  rival  candidate
cannot form the  basis  of  an  appeal  to  refrain  from  voting  for  that
candidate. The corrupt practice under Section 123(3) consists of  an  appeal
to cast votes for a candidate or to refrain from casting votes for  a  rival
candidate on the basis of the religion, race, caste  community  or  language
of the candidate himself  or,  as  the  case  may  be,  that  of  the  rival
candidate.

18    What then, is the rationale for Section 123(3) not to  advert  to  the
religion, caste, community or language of the voter as a  corrupt  practice?
Our  Constitution  recognizes  the  broad  diversity  of  India  and,  as  a
political document, seeks to foster a sense of inclusion. It seeks to  wield
a nation where its citizens practice different  religions,  speak  varieties
of languages, belong to various castes  and  are  of  different  communities
into the concept of one nationhood. Yet,  the  Constitution,  in  doing  so,
recognizes the position of religion,  caste,  language  and  gender  in  the
social life of  the  nation.  Individual  histories  both  of  citizens  and
collective groups in our  society  are  associated  through  the  ages  with
histories of discrimination and injustice on the  basis  of  these  defining
characteristics. In numerous provisions,  the  Constitution  has  sought  to
preserve a delicate balance between  individual  liberty  and  the  need  to
remedy these histories of injustice founded upon  immutable  characteristics
such as of religion, race, caste and language. The integrity of  the  nation
is based on a sense of common citizenship. While establishing  that  notion,
the Constitution is not oblivious of  history  or  to  the  real  injustices
which have been perpetrated against large  segments  of  the  population  on
grounds of religion, race, caste and  language.  The  Indian  state  has  no
religion nor does the Constitution recognize any religion as a  religion  of
the state. India is not a theocratic state but a  secular  nation  in  which
there is a respect for and acceptance of  the  equality  between  religions.
Yet, the  Constitution  does  not  display  an  indifference  to  issues  of
religion,  caste  or  language.  On  the  contrary,  they  are  crucial   to
maintaining a stable balance in the governance of the nation.

19    Article 15(1) contains a prohibition  against  discrimination  by  the
state against any citizen only on grounds of  religion,  race,  caste,  sex,
place of birth or any of them. Yet, clause (4)  makes  it  clear  that  this
shall  not  prevent  the  state  from  making  special  provisions  for  the
advancement of socially or educationally backward classes  of  the  citizens
or for the scheduled castes and scheduled tribes. Article  16(1)  guarantees
equality of opportunity for all  citizens  in  matters  relating  to  public
employment while clause (2)  contains  a  guarantee  against  discrimination
only on the grounds of religion, race, caste, sex, descent, place of  birth,
residence or any of them. Yet, clause (4) of Article 16 empowers  the  state
to make provisions for the reservation of appointments or  posts  in  favour
of any backward class of citizens which is  not  adequately  represented  in
the services under the state. Article17 abolishes untouchability,  which  is
a pernicious and baneful practice of caste. Article  25  guarantees  to  all
persons an equal entitlement to the freedom of conscience and the  right  to
freely practice, profess  and  propagate  religion.  Yet,  Article  25(2)(b)
enables the state to make any law providing for social  welfare  and  reform
or the throwing open of Hindu religious institutions of a  public  character
to all classes and sections of Hindus. Article 25(2)(b) is a recognition  of
the  social  history  of  discrimination  which  perpetrated  centuries   of
exclusion from worship on the ground  of  religion.  Article  26  guarantees
certain rights to religious denominations. Article 29  guarantees  to  every
section of the citizens with a distinct language, scriptor  culture  of  its
own the right to conserve the  same.  Article  30  protects  the  rights  of
religious and linguistic minorities to establish and administer  educational
institutions of their choice. Article 41 which is a part  of  the  Directive
Principles requires the state, within the limits of  its  economic  capacity
and development, to make effective  provision  for  securing  the  right  to
work, to education and to public assistance in cases  of  unemployment,  old
age, sickness and disablement,  and  in  other  cases  of  undeserved  want.
Article 46 mandates that the state  shall  promote  with  special  care  the
educational and economic interests of the weaker sections of the people  and
in particular, of the  Scheduled  Castes  and  Scheduled  Tribes  and  shall
protect them from social injustice and all forms  of  exploitation.  Article
330 and Article 332 provide for the reservation of seats for  the  Scheduled
Castes and Scheduled  Tribes  in  the  Lok  Sabha  and  in  the  legislative
assemblies of the states. The  Presidential  power  to  designate  Scheduled
Castes has a constitutional origin traceable to Article 341  and  in  regard
to Scheduled Tribes, to Article 342. Part XVII of the Constitution  contains
provisions  for  the  official  language  of  the  Union  and  for  regional
languages. The eighth schedule of the Constitution  contains  a  recognition
of the diversity of India in terms of its spoken and written languages.

20    These, among other, provisions of the  Constitution  demonstrate  that
there is no wall of separation  between  the  state  on  the  one  hand  and
religion, caste, language, race or community on the other. The  Constitution
is  not  oblivious  to  the  history  of  discrimination  against  and   the
deprivation inflicted  upon  large  segments  of  the  population  based  on
religion, caste and language. Religion, caste and language  are  as  much  a
symbol of social discrimination imposed on large segments of our society  on
the basis of immutable characteristics as they are of a social  mobilisation
to answer centuries of injustice. They are part of the central theme of  the
Constitution to produce  a  just  social  order.  Electoral  politics  in  a
democratic polity is about mobilisation. Social mobilisation is an  integral
element of the search for authority and legitimacy. Hence, it would be  far-
fetched to assume that in legislating to adopt  Section  123(3),  Parliament
intended to obliterate  or  outlaw  references  to  religion,  caste,  race,
community  or  language  in  the  hurly  burly  of  the  great  festival  of
democracy. The corrupt practice lies in an appeal being made to vote  for  a
candidate  on  the  ground  of  his  religion,  race,  caste,  community  or
language. The corrupt practice also  lies  in  an  appeal  to  refrain  from
voting for any candidate on the basis of the above  characteristics  of  the
candidate. Electors however, may have and  in  fact  do  have  a  legitimate
expectation that the discrimination and  deprivation  which  they  may  have
suffered in the past (and which many continue to suffer)  on  the  basis  of
their religion, caste, or language should be remedied. Access to  governance
is a means of  addressing  social  disparities.  Social  mobilisation  is  a
powerful instrument of bringing marginalised groups into the mainstream.  To
hold that a person who seeks to  contest  an  election  is  prohibited  from
speaking of the legitimate concerns of citizens that  the  injustices  faced
by them on the basis of traits having an origin in  religion,  race,  caste,
community or language would  be  remedied  is  to  reduce  democracy  to  an
abstraction. Coupled with this fact  is  the  constitutional  protection  of
free speech and expression in Article 19(1)(a)  of  the  Constitution.  This
fundamental right is subject to reasonable restrictions as provided  in  the
Constitution. Section 123(3) was not meant to and  does  not  refer  to  the
religion  (or  race,  community,  language  or  caste)  of  the  voter.   If
Parliament intended to do so, it was for the legislature to  so  provide  in
clear and unmistakable terms. There is no warrant for making  an  assumption
that Parliament while enacting  Section  123(3)  intended  to  sanitize  the
electoral process  from  the  real  histories  of  our  people  grounded  in
injustice,  discrimination  and  suffering.  The  purity  of  the  electoral
process is one thing. The purity of the process is sought to  be  maintained
by proscribing an appeal to the religion of a candidate (or to  his  or  her
caste, race, community  or  language)  or  in  a  negative  sense  to  these
characteristics of a rival candidate. The “his”  in  Section  123(3)  cannot
validly refer to the religion, race, caste, community  or  language  of  the
voter.

21    An appeal by a candidate  on  the  ground  of  ‘his’  religion,  race,
caste, community or language is a solicitation of votes on that  foundation.
Similarly, an appeal by a candidate to the voters not to vote  for  a  rival
candidate on the ground of his religion, race, caste, community or  language
is also an appeal on the ground of religion. If a candidate  solicits  votes
on the ground that he is a Buddhist that would constitute an appeal  on  the
ground of his religion. Similarly, if a candidate calls upon the voters  not
to vote for a rival candidate because he is a  Christian,  that  constitutes
an appeal on the ground of religion. However, the statute does not  prohibit
discussion, debate or dialogue during the course of an election campaign  on
issues pertaining to religion or on issues  of  caste,  community,  race  or
language.  Discussion  of  matters  relating  to  religion,   caste,   race,
community or language which are of concern to the voters is  not  an  appeal
on those  grounds.  Caste,  race,  religion  and  language  are  matters  of
constitutional importance. The Constitution deals  with  them  and  contains
provisions for the amelioration of  disabilities  and  discrimination  which
was practiced on the basis of those features.  These are matters of  concern
to voters especially where large segments of the  population  were  deprived
of basic human rights as a result  of  prejudice  and  discrimination  which
they have suffered on the basis of caste and  race.  The  Constitution  does
not deny religion, caste, race, community or  language  a  position  in  the
public space.  Discussion about these  matters  -  within  and  outside  the
electoral context  –  is  a  constitutionally  protected  value  and  is  an
intrinsic part of the freedom  of  speech  and  expression.  The  spirit  of
discussion, debate and dialogue sustains constitutional democracy.  A  sense
of inclusion can only be  fostered  by  protecting  the  right  of  citizens
freely to engage in a dialogue in public spaces. Dialogue and criticism  lie
at  the  heart  of  mobilising  opinion.  Electoral  change  is  all   about
mobilising opinion and motivating others to stand  up  against  patterns  of
prejudice and disabilities  of  discrimination.   Section  123(3)  does  not
prohibit electoral discourse being founded on issues  pertaining  to  caste,
race, community, religion or language.

22    What is proscribed by Section 123(3) is a candidate  soliciting  votes
for himself or making a request for  votes  not  to  be  cast  for  a  rival
candidate on the basis of his own (or of  the  rival  candidate’s)  religion
etc. Where an election agent has made an appeal on  the  proscribed  ground,
that implicates the candidate because the election agent  is  a  person  who
acts on behalf of a candidate. Similarly, any other person making an  appeal
with the consent of the candidate would also implicate the  candidate  since
the consent gives rise to an inference of agency. Another person  making  an
appeal  on  behalf  of  a  candidate  with  the  consent  of  the  candidate
represents the candidate. The view which we have adopted is that  first  and
foremost, Section 123(3) must be interpreted in a  literal  sense.  However,
even if the provision were to be  given  a  purposive  interpretation,  that
does not necessarily lead to the interpretation  that  Section  123(3)  must
refer to the caste, religion, race, community or language of the  voter.  On
the  contrary,  there  are  sound  constitutional  reasons,  which  militate
against Section 123(3) being read to include a  reference  to  the  religion
(etc) of the voter. Hence, it is not  proper  for  the  court  to  choose  a
particular theory based on purposive interpretation, when that principle  of
interpretation does not necessarily lead to one inference or  result  alone.
It must be left to the legislature to  amend  or  re-draft  the  legislative
provision, if it considers it necessary to do so.

23    The next aspect which needs to be carefully analysed is  whether  this
interpretation is  belied  by  the  legislative  history  of  the  statutory
provision.

E.     Legislative history

24    Originally, the Representation of the People Act,  1951  distinguished
between major corrupt practices (which were  defined  in  Section  123)  and
minor  corrupt  practices  (in  Section  124).   Among  the  minor   corrupt
practices, sub-section (5) of Section 124 contained the following :

“124. Minor Corrupt practices.-

(5) The systematic appeal to vote or  refrain  from  voting  on  grounds  of
caste, race, community or religion or the use of; or  appeal  to,  religious
and national symbols, such as, the national flag and  the  national  emblem,
for the furtherance of the prospects of a candidate’s election.”



The appeal to vote or to refrain from  voting  on  grounds  of  caste,  race
community or religion was required to be “systematic”, if  an  act  were  to
constitute a corrupt  practice.  Systematic  meant  something  more  than  a
singular act. It required acts which were regular or repetitive.

25    In 1956, Parliament enacted an amending law[53]  by  which  Chapter  I
was substituted in the principal Act for erstwhile  Chapters  I  and  II  of
Part VII by introducing a comprehensive definition of corrupt  practices  in
Section 123.  Section 123(3) as enacted by  the  amending  Act  was  in  the
following terms :

“123. Corrupt practices.-

(3) The systematic appeal by a candidate  or  his  agent  or  by  any  other
person, to vote or refrain from voting on grounds of caste, race,  community
or religion 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 that candidate’s  election.”




26    The 1956 Amendment continued the requirement of  a  “systemic  appeal”
to vote or refrain from voting on  grounds  of  caste,  race,  community  or
religion but brought in words  indicating  that  the  appeal  may  be  by  a
candidate or his agent or by any other person. In 1958, an amending  Act[54]
was enacted by which the expression “with the consent of a candidate or  his
election agent” were added. If a candidate were to  be  held  liable  for  a
statement of any other person, the consent of the candidate or his  election
agent was necessary. This amendment was brought about following  the  report
of a Select Committee dated 15 December 1958 which  felt  that  any  of  the
objectionable actions mentioned in Section 123 should  be  deemed  to  be  a
corrupt practice when committed by a person other than a  candidate  or  his
agent, only if the person engaging in the action had acted with the  consent
of the candidate or his election agent.

27    In 1961, sub-section (3) of Section 123  was  substituted  and  a  new
provision, sub-section (3A) was introduced. The background to the  amendment
was that the Select Committee in a report dated 19 August  1961  recommended
the substitution of clause (3) on the ground that it did not  clearly  bring
about  its  intention.   Among  the  major  changes  brought  about  by  the
substituted sub-section (3) were the following:

The expression “systematic appeal” was altered  to simply an “appeal”;



After the expression “to vote or refrain from voting”  the  words  “for  any
person  on  the  ground  of  his”  were  introduced  before  the  expression
‘religion, race, caste, community’;



In  addition  to  religion,  race,  caste  and  community,  a  reference  to
‘language’ was introduced;



The word ‘grounds’ was substituted by the word ‘ground’; and



    (v)    At  the  end  of  sub-section  (3),  after  the  words  “for  the
furtherance of the     prospects of the  election  of  that  candidate”  the
words “or for prejudicially  affecting the election of any  candidate”  were
introduced.  As substituted  after the amendment of 1961, sub-  section  (3)
of Section 123 stood as      follows:

“(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.



Simultaneously, with the substitution of Section  3,  sub-Section  (3A)  was
introduced into Section 123 to incorporate another corrupt practice  in  the
following terms :

“(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.”



28    The substitution of Section 123(3) by the Amending  Act  of  1961  was
preceded by a report of the Select Committee.   During  the  course  of  the
discussions in the Select Committee two notes of dissent  were  appended  by
Smt. Renu Chakravartty and by Shri Balraj Madhok.    Recording  her  dissent
Smt. Chakravartty stated that :

“The major amendment in the Bill is clause 23 seeking to amend  section  123
of the principal Act (1951).  The ostensible reason given is  that  communal
and caste propaganda and the enmity arising there from, must be checked  for
the purposes of strengthening national integration.  No  secular  democratic
party can object to such a  laudable proposition, although according to  me,
there are sufficient powers in the ordinary law to check these practices  if
those in power desire to do so.  Therefore, I am  of  the  opinion  that  no
useful purpose will be served by this amendment.  Rather I  am  afraid  that
it would be used against anyone seeking to criticize unjust practices  based
on caste or community, resulting in social oppression, or  those,  who  give
expression to grievances under which any caste, community or minority  group
may suffer, would be charged of corrupt practice.”     (emphasis supplied)



The learned member found it “even more disconcerting” that  an  attempt  had
been made to place “the language question on a par  with  communalism  as  a
corrupt practice in elections”. In a strongly worded note, she  stated  that
the demand, with the formation of linguistic states, for  a  rightful  place
for minority languages was a democratic demand and  should  legitimately  be
permitted to be raised as a political issue.   Shri  Balraj  Madhok  opposed
the deletion of the expression “systematic” on the  ground  that  any  stray
remark of a speaker could be taken advantage of  in  an  election  petition,
whereas only a systematic  and  planned  propaganda  of  a  communal  nature
should be made objectionable.

29    When the Bill to amend the provision was introduced in Parliament  the
Notes on Clauses indicated  that  the  ambit  of  the  corrupt  practice  in
Section  123(3)  was  sought  to  be  widened  for  curbing   communal   and
separatists tendencies.  The Notes on Clauses read thus :

 “Clauses  25,  26,  29  and  30  –  For  curbing  communal  and  separatist
tendencies in the country it is proposed to widen the scope of  the  corrupt
practice mentioned in clause (3) of Section 123 of the 1951- Act (as in sub-
clause (a) of clause 25), and to provide for a new corrupt practice  (as  in
sub-clause (b) of clause 25) and a new  electoral  offence   (as  in  clause
(26) for the promotion of feelings  of  hatred  and  enmity  no  grounds  of
religion, race, caste, community or  language.  It  is  also  proposed  that
conviction for this new offence will entail disqualification for  membership
of Parliament  and  of  State  Legislatures  and  also  for  voting  at  any
election. This is proposed to be done by suitable amendments in section  139
and section 141 of the 1951-Act as in clauses 29 and 30 respectively.”



30    The object of widening the ambit of sub-section (3)  was  achieved  by
the deletion of the expression “systematic”.    A  systematic  appeal  would
evidently have required proof at the trial of an election  petition  of  the
appeal on the grounds of religion being repetitive over a stretch  of  time.
By deleting  the  expression  “systematic”,  Parliament  indicated  that  an
appeal by itself would  be  sufficient  if  the  provisions  were  otherwise
fulfilled. Moreover, language was an additional ground which was  introduced
in addition to religion, race,  caste  and  community.  Sub-section  3A  was
simultaneously introduced so as to provide  that  the  promotion  of  or  an
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 would constitute a corrupt practice where it was indulged in  by  a
candidate, his agent or  by  any  other  person  with  the  consent  of  the
candidate or his election agent for furthering  the  election  prospects  of
the candidate or for prejudicially affecting the election of any  candidate.
While widening the ambit of the corrupt practice as provided in  sub-section
(3), a significant change was brought about by the inclusion  of  the  words
“for any person on the ground of his”.  Shri A.K. Sen, who was then the  Law
Minister explained the reason for the introduction of the word  ‘his’  in  a
speech in the Lok Sabha :

“Shri A.K. Sen : I added the word ‘his’ in the Select Committee in order  to
make quite clear as to  what  was  the  mischief  which  was  sought  to  be
prevented under this provision.

The apprehension was expressed if one’s right was  going  to  be  curbed  by
this section. If such a right was going to  be  curbed  by  the  section.  I
would have been against such an amendment, because  after  all,  it  is  the
right of a person to propagate his own language, his own particular  culture
and various  other  matters.  But  that  does  not  mean  vilifying  another
language or creating enmity between communities.

You cannot make it an election issue if you say, ‘Do not vote  for  him.  He
is a Bengali’ or  ‘Do  not  vote  for  him.  He  is  a  Khasi.’  I  made  it
unequivocally clear that it is the purpose and design of this House  and  of
the country to ensure that. No man shall appeal only  because  he  speaks  a
particular language and should get voted for that reason; or  no  man  shall
appeal against a particular person to the  electorate  solely  because  that
opponent of his speaks a particular language.

But we are on a very narrow point, whether we shall extend the  right  to  a
person, to a voter, to say: vote for me  because  I  speak  Hindi,  I  speak
Garhwali, or I speak Nepali or I speak Khasi; or in the alternative, do  not
vote for my opponent  because  he  is  a  man  who  speaks  this  particular
language, his own language. It  is  on  that  sole  narrow  point  that  the
prohibition is sought to be made.

…But the problem is, are we going to allow a man to  go  to  the  electorate
and ask for votes because he happens to speak a particular language  or  ask
the electorate to refrain from voting for a particular person merely on  the
ground of his speaking a  particular  language  or  following  a  particular
religion and so on? If not, we have to support this.

…But if you say that Bengali language in this area is  being  suppressed  or
the schools are being closed, as Shri Hynniewta  was  saying,  because  they
bore a particular name, then, you are speaking  not  only  to  fight  in  an
election but you  are  also  really  seeking  to  protect  your  fundamental
rights, to preserve your own language  and  culture.  That  is  a  different
matter.

But, if you say, ‘I am a Bengali, you are all Bengalis, vote for me’, or  ‘I
am an Assamese and so vote for me because you are Assamese-speaking men’,  I
think, the entire House will  deplore  that  a  hopeless  form  of  election
propaganda. And, no progressive party will run an  election  on  that  line.
Similarly, on the ground of religion.” (emphasis supplied)



The speech of the Law Minister, who moved  the  Bill  leaves  no  manner  of
doubt that the expression ‘his’ referred to the religion  of  the  candidate
(or his caste, community, race or language) for whom votes  were  sought  or
of the candidate whose election was sought to be prejudicially  affected  by
an appeal to refrain from voting.

31    The traditional view of courts both in India and the UK was a rule  of
exclusion by  which  parliamentary  history  was  not  readily  utilized  in
interpreting a law. But as Justice GP Singh points out  in  his  ‘Principles
of  Statutory  Interpretation[55],  the  Supreme  Court  of  India  utilized
parliamentary history on many an occasion as an aid to  resolving  questions
of construction. The learned author states that :

“The Supreme Court, speaking generally, to begin with, enunciated  the  rule
of exclusion of Parliamentary  history  in  the  way  it  was  traditionally
enunciated by the English Courts, but on many an occasion,  the  court  used
this aid in resolving questions of construction.  The court has  now  veered
to the view that  legislative  history  within  circumspect  limits  may  be
consulted  by  courts  in  resolving  ambiguities.   But  the  court   still
sometimes, like the English courts, makes a distinction  between  use  of  a
material for finding the mischief dealt with by the  Act  and  its  use  for
finding the meaning of the Act. As submitted  earlier  this  distinction  is
unrealistic and has now been abandoned by the House of Lords”.[56]



The evolution of the  law  has  been  succinctly  summarized  in  the  above
extract.



32    In an early decision of 1952 in State of Travancore Co. v. Bombay  Co.
Ltd.[57], Justice Patanjali Sastri   while  adopting  the  traditional  view
observed that :

“A speech made in the course of the debate  on  a  bill  could  at  best  be
indicative of the subjective  intent  of  the  speaker,  but  it  could  not
reflect the inarticulate mental  process  lying  behind  the  majority  vote
which carried the bill. Nor is it reasonable to assume  that  the  minds  of
all those legislators were in accord”. “A statute”, said Sinha, C.J.I.,  “is
the expression of the collective intention of the  Legislature  as  a  whole
and any  statement  made  by  an  individual,  albeit  a  minister,  of  the
intention and object of the Act, cannot be used to cut down  the  generality
of the words used in the statute.”



In State of West Bengal v. Union of India[58], Justice Sinha stated  that  a
statute is the expression of the collective intention of the legislature  as
a whole, and any statement made by an individual, albeit a Minister, of  the
intention and objects of the Act cannot be used to cut down  the  generality
of the words used in the statute.  However, in Chiranjit  Lal  Chowdhuri  v.
Union of India[59], Justice Fazl Ali adverted to the  parliamentary  history
including the statement of the Minister introducing  a  Bill  as  evidencing
the circumstances which necessitated the passing of the  legislation.   Over
a period of time, the narrow view favouring  the  exclusion  of  legislative
history has given way to a broader perspective.  Debates in the  Constituent
Assembly  have  been  utilized  as  an  aid  to  the  interpretation  of   a
constitutional  provision   (Indra   Sawhney   v.   Union   of   India[60]).
Parliamentary debates have been relied upon in  the  context  of  a  dispute
relating to the construction of the  Patents  Act,  1970,  (Novartis  AG  v.
Union of India[61]); while  construing  the  provisions  of  the  Mines  and
Minerals (Regulation and Development) Act, 1957, (State  of  Madhya  Pradesh
v. Dadabhoy’s New Chirimiri Ponri Hill Colliery Co. Pvt. Ltd.)[62][See  also
in this context Union of India v. Legal Stock  Holders  Syndicate[63],  K.P.
Vergese  v.  Income  Tax  Officer[64],  Surana  Steels  Pvt.  Ltd.   v.   Dy
Commissioner of Income Tax[65]].

33    The modern trend as Justice GP Singh notes (supra) is  to  permit  the
utilization  of  parliamentary  material,  particularly  a  speech  by   the
Minister moving a Bill in construing the words of a statute :

“…(iii) Modern trend.—The school  of  thought  that  limited  but  open  use
should be made of parliamentary history  in  construing  statutes  has  been
gaining ground. Direct judicial approval of  this  trend  by  the  House  of
Lords came in Pepper v. Hart.   In  that  case  LORD  BROWNE  WILKINSON  who
delivered the leading speech which was agreed to by  five  other  law  Lords
(LORD KEETH, LORD BRIDGE, LORD GRIFFITHS,  LORD  ACKNER  AND  LORD  OLIVER),
laid down: “Reference to parliamentary material should be  permitted  as  an
aid to the construction of legislation which is ambiguous or obscure or  the
literal meaning of which leads to absurdity. Even in such  cases  references
in court to parliamentary material  should  only  be  permitted  where  such
material  clearly  discloses  the  mischief  aimed  at  or  the  legislative
intention lying behind the ambiguous  or  obscure  words.  In  the  case  of
statements made in Parliament, as at present advised, I cannot foresee  that
any statement other than the statement of the minister or other promoter  of
the Bill is likely to meet these  criteria.”  In  reaching  this  conclusion
LORD BROWNE WILKINSON reasoned that “the Court cannot attach  a  meaning  to
words which they cannot bear, but if the words are capable of  bearing  more
than one meaning why should not Parliament's true intention be enforced.”



The use of parliamentary debates as an aid to statutory  interpretation  has
been noticed in several decisions of this Court[66].

34    The speech made by the Law Minister when the Bill  for  the  amendment
of Section 123(3) was  moved  in  Parliament  was  expressly  noted  in  the
judgment of Justice J.S. Verma (as the learned Chief Justice  then  was)  in
    Dr RY Prabhoo v. PK Kunte[67].

35    In Bennion on Statutory Interpretation[68], the  need  for  a  balance
between the traditional  view  supporting  the  exclusion  of  the  enacting
history of a statute and the more realistic contemporary  doctrine  allowing
its use  as  an  aid  to  statutory  interpretation  has  been  brought  out
succinctly. This is evident from the following extract :

“It is worth repeating that on a strict view the enacting history should  be
irrelevant, since the object of Parliament is to express its  will  entirely
within the definitive text of the  Act  itself.  This  eminently  convenient
doctrine  has  unfortunately  proved  too  idealistic  and  theoretical   in
practice. The essence of statutory  interpretation  lies  in  resolving  the
dichotomy between the ‘pure’ doctrine that the law is to  be  found  in  the
Act and nowhere else, and the ‘realist’  doctrine  that  legislation  is  an
imperfect technique requiring,  for  the  social  good,  an  importation  of
surrounding information.  In  the  upshot,  this  information  is  generally
regarded as admissible (according  to  the  weight  it  deserves  to  carry)
unless there is some substantial reason requiring it to be kept out.”



The modern trend is to enable the court to look at the enacting  history  of
a legislation to foster a full understanding of  the  meaning  behind  words
used by the legislature, the mischief which the law seeks  to  deal  and  in
the process, to formulate an informed interpretation of  the  law.  Enacting
history  is  a  significant  element  in  the  formation  of   an   informed
interpretation.

36    The legislative history indicates that Parliament, while omitting  the
requirement of a “systematic” appeal intended to  widen  the  ambit  of  the
provision. An ‘appeal’ is not hedged in  by  the  restrictive  requirements,
evidentiary and substantive,  associated  with  the  expression  “systematic
appeal”.  ‘Language’  was  introduced  as  an  additional  ground  as  well.
However, it would not be correct as a principle of  interpretation  to  hold
that if the expression “his” religion is used to refer to the religion of  a
candidate, the legislature would be constraining the width of the  provision
even beyond its pre-amended avatar. It is true  that  the  expression  “his”
was not a part of Section 123(3) as it  stood  prior  to  the  amendment  of
1961. Conceivably the appeal to religion was not required to  relate  to  an
appeal to the religion of the candidate. But by imposing the requirement  of
a systematic appeal, Parliament had constrained the application  of  Section
123(3) only to cases where as the word systematic indicates the conduct  was
planned and repetitive. Moreover, it needs to be noted that  sub-section  3A
was not introduced earlier into Section 123. A new corrupt practice of  that
nature was introduced in 1961. The position can be looked at from more  than
one perspective. When Parliament expanded the ambit  of  Section  123(3)  in
1961,

it was entitled to determine the extent to which  the  provision  should  be
widened. Parliament would be mindful of the consequence of  an  unrestrained
expansion of the  ambit  of  Section  123(3).   Parliament  is  entitled  to
perceive, in  the  best  interest  of  democratic  political  discourse  and
bearing in mind the fundamental right to free  speech  and  expression  that
what should be proscribed should only be an appeal to  the  religion,  race,
caste, community or language of the  candidate  or  of  a  rival  candidate.
For, as we have seen earlier, if the provision is construed to apply to  the
religion of the voter, this  would  result  in  a  situation  where  persons
contesting an election would run the risk of engaging in a corrupt  practice
if the discourse during the  course  of  a  campaign  dwells  on  injustices
suffered by a segment of  the  population  on  the  basis  of  caste,  race,
community or language. Parliament did not intend its amendment  to  lead  to
such a drastic consequence. In making that legislative judgment,  Parliament
cannot  be  faulted.  The  extent  to   which   a   legislative   provision,
particularly one of a quasi-criminal character, should be  widened  lies  in
the legislative wisdom of the enacting body.  While expanding the  width  of
the erstwhile provision, Parliament was legitimately entitled to define  its
boundaries. The incorporation of the word “his” achieves just that purpose

F.      Precedent

37    Several decisions of this  Court  have  construed  the  provisions  of
Section 123(3).  While adverting to those decisions, it would  be  necessary
to note that each of the decisions  was  rendered  in  the  context  of  the
provision as it then stood.  As noted earlier Section 123(3)  has  undergone
statutory changes over

the  years.  In  Jagdev  Singh  Sidhanti  v.  Pratap  Singh  Daulta[69],   a
Constitution Bench held that the provisions of Section 123(3) must  be  read
in the light of the fundamental right guaranteed by  Article  29(1)  of  the
Constitution which protects the right of any section of the citizens with  a
distinct language, script or culture  of  its  own  to  conserve  the  same.
Holding that a political agitation for the conservation of the  language  of
a section of citizens is not a corrupt practice under Section  123(3),  this
Court observed :

“..The corrupt practice defined by clause (3) of Section  123  is  committed
when an appeal is made either to vote or refrain from voting on  the  ground
of the candidate’s language. It is the appeal to the electorate on a  ground
personal to the candidate relating to his language which  attracts  the  ban
of Section 100 read with Section l23(3).  Therefore  it  is  only  when  the
electors are asked to  vote  or  not  to  vote  because  of  the  particular
language of the candidate that a  corrupt  practice  may  be  deemed  to  be
committed. Where however for conservation  of  language  of  the  electorate
appeals are made to the electorate and promises are given that  steps  would
be taken to conserve  that  language,  it  will  not  amount  to  a  corrupt
practice”.


In that case, it was alleged by the election petitioner  that  the  returned
candidate had exhorted the electorate to vote for the Hariana Lok Samiti  if
it  wished  to  protect  its  own  language.   These  exhortations  to   the
electorate were held to have been made to induce the  government  to  change
its language policy or to indicate that a political party would agitate  for
the protection of a language spoken by the residents of  the  Haryana  area.
This, it was held, did not fall within the  corrupt  practice  of  appealing
for votes on the ground of the language of the candidate or to refrain  from
voting on the ground of the language of the contesting candidate.

38    In Kultar Singh v. Mukhtiar Singh[70], a Constitution  Bench  of  this
Court emphasized  the  salutary  purpose  underlying  Section123(3)  in  the
following observations :

“7. The  corrupt  practice  as  prescribed  by  Section  123(3)  undoubtedly
constitutes a very healthy and  salutary  provision  which  is  intended  to
serve the cause of secular democracy in this  country.  In  order  that  the
democratic process should thrive and succeed, it  is  of  utmost  importance
that our elections to Parliament and the different legislative  bodies  must
be free from the unhealthy influence of appeals to  religion,  race,  caste,
community or language. If  these  considerations  are  allowed  any  way  in
election campaigns, they would vitiate the secular atmosphere of  democratic
life, and so, Section 123(3) wisely provides a  check  on  this  undesirable
development by providing that an appeal to any  of  these  factors  made  in
furtherance of the candidature of any candidate as therein prescribed  would
constitute a corrupt practice and would render  the  election  of  the  said
candidate void.”



The appellant was elected to the Punjab Legislative Assembly.  According  to
the respondent, the Appellant had made speeches calling upon voters to  vote
for him as a  representative  of  the  Sikh  Panth.  The  issue  before  the
Constitution Bench was whether these speeches amounted to an appeal  to  the
voters to vote for the appellant on the ground of his religion  and  whether
the distribution of certain posters constituted an appeal to the  voters  on
the ground of the appellant’s religion.   The  context  indicates  that  the
words of Section 123(3) were applied  to  determine  whether  there  was  an
appeal on the ground of the religion of the candidate who had contested  the
election and was elected. The observations  of  a  more  general  nature  in
paragraph 7 (extracted above) must be read and understood in the context  of
what actually fell for decision  and  what  was  decided.  The  Constitution
Bench held that the reference to the Panth did not possibly  mean  the  Sikh
religion but only to a political party :

“14….After all, the  impugned  poster  was  issued  in  furtherance  of  the
appellant's candidature at an election, and the plain object  which  it  has
placed before the voters is that the Punjabi Suba can  be  achieved  if  the
appellant is elected; and that necessarily means that the appellant  belongs
to the Akali Dal Party and the Akali Dal Party is the  strong  supporter  of
the Punjabi Suba. In these proceedings, we are  not  concerned  to  consider
the propriety, the reasonableness or  the  desirability  of  the  claim  for
Punjabi Suba. That is a political issue and it  is  perfectly  competent  to
political parties to hold bona fide divergent and conflicting views on  such
a political issue. The significance of the reference to the Punjabi Suba  in
the impugned poster arises from the  fact  that  it  gives  a  clue  to  the
meaning which the poster intended to assign to the word “Panth”.  Therefore,
we are satisfied that the word “Panth” in this poster  does  not  mean  Sikh
religion, and so, it would not be  possible  to  accept  the  view  that  by
distributing this poster, the appellant appealed to his voters to  vote  for
him because of his religion.” (emphasis supplied)



In Kanti Prasad Jayshanker Yagnik v. Purshottam Das  Ranchhoddas  Patel[71],
a Bench of three learned judges  of  this  Court  while  construing  Section
123(3), held thus :

“25. One other ground given by the High Court  is  that  “there  can  be  no
doubt that in this passage (Passage 3) Shambhu Maharaj had  put  forward  an
appeal to the electors not to vote for the Congress Party  in  the  name  of
the religion.” In our opinion, there  is  no  bar  to  a  candidate  or  his
supporters appealing to the electors not to vote for  the  Congress  in  the
name of religion. What Section 123(3) bars is that an appeal by a  candidate
or his agent or any other person with the consent of the  candidate  or  his
election agent to vote or refrain from voting for any person on  the  ground
of his religion i.e., the religion of the candidate”. (emphasis supplied)



The expression “his religion” was hence specifically construed to  mean  the
religion of a candidate.

39    A decision of two learned judges of this Court in Ambika Sharan  Singh
v. Mahant Mahadeva and Giri[72], involved a case where it was  alleged  that
the appellant and his agents had campaigned on the basis that the  appellant
was a Rajput and the Rajput voters  in  certain  villages  should  therefore
vote for him.  This Court, while affirming the judgment of  the  High  Court
holding that the appellant had committed a corrupt  practice  under  Section
123(3) held that the evidence indicated that the campaign on  the  basis  of
caste was carried out by the appellant himself at some places, and at  other
places by others including his election agent.  Ambika Sharan was  therefore
a case where an appeal was made  on  the  ground  of  the  religion  of  the
candidate.

40    The decision of the Constitution Bench was  followed  by  a  Bench  of
three Judges of this Court in Ziyauddin Bukhari v. Brijmohan Ramdas[73].  In
that case, the appellant was  contesting  an  election  to  the  legislative
assembly. In the course of his speeches he made a direct  attack  against  a
rival candidate who, like him, was also Muslim on the  ground  that  he  was
not true to his religion whereas the appellant  was.  The  High  Court  held
this to be a corrupt practice under Section 123(3)  following  the  decision
in Kultar Singh.  This  was  affirmed  by  this  Court  with  the  following
observations :

“30. The High Court had referred to Kultar Singh v. Mukhtiar Singh and  said
that a candidate appealing to voters in the name of his  religion  could  be
guilty of a corrupt practice struck by Section  123(3)  of  the  Act  if  he
accused a rival candidate, though of the same religious denomination, to  be
a renegade or a heretic. The  appellant  had  made  a  direct  attack  of  a
personal character upon  the  competence  of  Chagla  to  represent  Muslims
because Chagla was not, according to Bukhari,  a  Muslim  of  the  kind  who
could represent Muslims. Nothing could be a clearer denunciation of a  rival
on the ground of religion. In our opinion, the High Court had  rightly  held
such accusations to be contraventions of Section 123(3) of the Act.”



41    In Dr Ramesh Yeshwant Prabhoo v. Prabhakar  Kashinath  Kunte[74],  the
provisions of Section 123(3) were construed and it was held that  an  appeal
was made to the voters to vote in favour of the appellant on the  ground  of
his religion :

“11. There can be no doubt that the word  'his'  used  in  subs-section  (3)
must have significance and it cannot be ignored or  equated  with  the  word
'any' to bring within the net of Sub-section (3) any appeal in  which  there
is any reference to religion. The religion forming the basis of  the  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. This is  clear  from
the plain language of Sub-section (3) and this is the only manner  in  which
the word 'his' used therein can be construed.  The  expressions  the  appeal
...to vote or refrain from voting for  any  person  on  the  ground  of  his
religion, ... for the furtherance of the prospects of the election  of  that
candidate or for prejudicially affecting  the  election  of  any  candidate"
lead clearly to this conclusion. When the appeal is to vote  on  the  ground
of 'his' religion for the furtherance of the prospects of  the  election  of
that candidate, that appeal is made on the basis  of  the  religion  of  the
candidate for whom votes are solicited. On the other hand  when  the  appeal
is to refrain from voting for any person on the  ground  of  'his'  religion
for prejudicially affecting the election of any candidate,  that  appeal  is
based on the religion of the  candidate  whose  election  is  sought  to  be
prejudicially affected. It is thus clear that for  soliciting  votes  for  a
candidate, the appeal prohibited is that which is  made  on  the  ground  of
religion of the candidate for whom  the  votes  are  sought;  and  when  the
appeal is to refrain from voting  for  any  candidate,  the  prohibition  is
against an appeal on the ground of the religion  of  that  other  candidate.
The first is a positive appeal and the second a negative  appeal.  There  is
no ambiguity in Sub-section (3) and  it  clearly  indicates  the  particular
religion on the basis of which an appeal to vote or refrain from voting  for
any person is prohibited under Sub-section (3).”



The same view was adopted in  Manohar  Joshi  v.  Nitin  Bhaurao  Patil[75].
This Court held that :

“62. We would  now  consider  the  only  surviving  question  based  on  the
pleading in para 30 of the election petition.  The  specific  allegation  in
para 30 against the appellant is that in the meeting held  on  24-2-1990  at
Shivaji Park, Dadar, he had stated that  “the  first  Hindu  State  will  be
established in  Maharashtra”.  It  is  further  pleaded  therein  that  such
meetings were held at Khaddke Building, Dadar on  21-2-1990,  Prabhadevi  on
16-2-1990, at Kumbharwada on 18-2-1990 and Khed Galli  on  19-2-1990.  These
further facts are unnecessary in the  context  because  the  maximum  impact
thereof is to plead that the same statement was made  by  the  appellant  in
the other meetings as well, even though such an inference does not arise  by
necessary implication. In our opinion,  a  mere  statement  that  the  first
Hindu State will be established in Maharashtra is by itself  not  an  appeal
for votes on the ground of his religion but  the  expression,  at  best,  of
such a hope. However despicable be such a statement, it cannot  be  said  to
amount to an appeal for votes on the ground of his religion.  Assuming  that
the making of such a statement in  the  speech  of  the  appellant  at  that
meeting is proved, we cannot hold that it constitutes the  corrupt  practice
either under sub-section (3) or  sub-section  (3-A)  of  Section  123,  even
though we would express our disdain at the entertaining of  such  a  thought
or such a stance in a political leader of any  shade  in  the  country.  The
question is whether the corrupt practice as defined in  the  Act  to  permit
negation of the electoral verdict has been made out. To this our  answer  is
clearly in the negative.”



      In Harmohinder Singh Pradhan v. Ranjit Singh Talwandi[76]  a Bench  of
three learned judges followed the decision  in  Ramesh  Y.  Prabhoo  (supra)
while construing the provisions of Section 123(3) :

“(3). The religion forming the basis of the 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. This is clear from the  plain  language
of sub-section (3) and this is the only manner in which the word “his”  used
therein can be construed. When the appeal is to vote on the ground of  “his”
religion for the furtherance of  the  prospects  of  the  election  of  that
candidate, that appeal  is  made  on  the  basis  of  the  religion  of  the
candidate for whom votes are solicited. On the other hand, when  the  appeal
is to refrain from voting for any person on the  ground  of  “his”  religion
for prejudicially affecting the election of any candidate,  that  appeal  is
based on the religion of the  candidate  whose  election  is  sought  to  be
prejudicially affected. Thus, for soliciting  votes  for  a  candidate,  the
appeal prohibited is that which is made on the ground  of  religion  of  the
candidate for whom the votes are sought; and when the appeal is  to  refrain
from voting for any candidate, the prohibition is against an appeal  on  the
ground of the religion of that other candidate.  The  first  is  a  positive
appeal and the second a negative appeal. Sub-section (3)  clearly  indicates
the particular religion on the basis of which an appeal to vote  or  refrain
from voting for any person is prohibited under sub-section  (3)”.  (emphasis
supplied)

42    The reference to ‘his’ religion  in  Section  123(3)  has  hence  been
construed to mean the religion of the candidate in whose  favour  votes  are
sought or the religion of a rival candidate  where  an  appeal  is  made  to
refrain from voting for him.

43     In the decision of nine judges in S R Bommai v. Union  of  India[77],
the judgments of Justice P.B.  Sawant  (speaking  for  himself  and  Justice
Kuldip Singh), Justice Ramaswamy and Justice BP Jeevan Reddy  (speaking  for
himself and Justice Agarwal) have adverted  to  the  provisions  of  Section
123(3). Secularism was held to be a  part  of  the  basic  features  of  the
Constitution in Bommai. The meaning of Section 123(3) was  not  directly  in
issue in the case, nor have all the judges who delivered separate  judgments
commented on the provision.  Justice P.B.  Sawant  rejected  the  submission
that an appeal only to  the  religion  of  the  candidate  is  prohibited  :


“149. Mr Ram Jethmalani  contended  that  what  was  prohibited  by  Section
123(3) was not an appeal to religion as such but an appeal  to  religion  of
the candidate and seeking vote in the name of the said  religion.  According
to him, it did not prohibit the candidate from seeking vote in the  name  of
a religion to which the candidate did  not  belong.  With  respect,  we  are
unable to accept this contention. Reading  sub-sections  (3)  and  (3-A)  of
Section 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.” (emphasis supplied)

Justice Ramaswamy adopted the view that in  secular  matters,  religion  and
the affairs of the state cannot be intertwined.  Elections in this view  are
a secular matter.  Adverting to  Section  123(3)  and  Section  123(3A)  the
learned judge held that :

“196. The contention of Shri Ram  Jethmalani  that  the  interpretation  and
applicability of sub-sections (3) and (3-A)  of  Section  123  of  R.P.  Act
would be confined to  only  cases  in  which  individual  candidate  offends
religion of rival candidate in the election contest and  the  ratio  therein
cannot be extended when a political  party  has  espoused  as  part  of  its
manifesto a religious cause, is totally untenable. This Court laid  the  law
though in the context of  the  contesting  candidates,  that  interpretation
lends no licence to a political party to influence the  electoral  prospects
on grounds of religion. In a  secular  democracy,  like  ours,  mingling  of
religion with politics  is  unconstitutional,  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.  Every
political party, association of persons or individuals  contesting  election
should abide by the constitutional ideals, the  Constitution  and  the  laws
thereof. I also agree with my learned Brethren Sawant and Jeevan Reddy,  JJ.
in this behalf.” (emphasis supplied)



Justice B P Jeevan Reddy held that the reference in Section 123(3)  must  be
construed to mean the religion of the candidate :

“311. Consistent with the  constitutional  philosophy,  sub-section  (3)  of
Section 123 of the Representation of the People Act, 1951 treats  an  appeal
to the electorate  to  vote  on  the  basis  of  religion,  race,  caste  or
community of the candidate or the use of  religious  symbols  as  a  corrupt
practice. Even a single instance of such a nature is enough to  vitiate  the
election of the candidate.  Similarly,  sub-section  (3-A)  of  Section  123
provides that “promotion of, or attempt to promote, feelings  of  enmity  or
hatred between  different  classes  of  citizens  of  India  on  grounds  of
religion, race, caste, community or language” by a candidate or  his  agent,
etc. for the furtherance of the prospects of the election of that  candidate
is equally a corrupt practice. Section 29-A  provides  for  registration  of
associations and bodies as political parties with the  Election  Commission.
Every party contesting elections and seeking to have a  uniform  symbol  for
all its  candidates  has  to  apply  for  registration.  While  making  such
application, the association or body has to affirm its faith and  allegiance
to “the principles of socialism, secularism  and  democracy”  among  others.
Since the Election Commission appears to have  made  some  other  orders  in
this behalf after the conclusion of arguments and because those orders  have
not been place before us or debated, we do not wish to say anything more  on
this subject”. (emphasis supplied)



In Mohd. Aslam v. Union of  India[78],  a  writ  petition  was  filed  under
Article 32 of the  Constitution  for  reconsideration  of  the  judgment  in
Manohar Joshi (supra) on the ground  of  the  decision  of  nine  judges  in
Bommai. The Bench of three judges however, held that the decision in  Bommai
did not relate to the construction of the  provisions  of  sub-sections  (3)
and (3A) of Section 123 and hence nothing in it would be  of  assistance  in
construing  those  provisions.  Bommai  does  not   provide   a   conclusive
interpretation of Section 123(3). Secularism  is  a  basic  feature  of  our
Constitution. It postulates the  equality  amongst  and  equal  respect  for
religions in the polity. Parliament, when it legislates as a  representative
body of the people, can legitimately formulate  its  policy  of  what  would
best subserve the needs of secular India. It  has  in  Section  123(3)  laid
down its normative vision. An appeal to vote on the ground of  the  religion
(or caste, community, race or language) of a candidate    or     to
refrain from voting for a candidate  on  the  basis  of  these  features  is
proscribed. Certain conduct is in addition  prohibited  by  sub-section  3A,
which is also a corrupt  practice.  Legislation  involved  drawing  balances
between different, and often conflicting values. Even  when  the  values  do
not conflict, the legislating body has to determine what  weight  should  be
assigned  to  each  value  in  its  calculus.  Parliament  has   made   that
determination and the duty of the court is to give effect to it.

G.      Conclusion

44    The view which has been adopted by this Court  on  the  interpretation
of  Section  123(3)  in  the  cases  noted  earlier,  commends  itself   for
acceptance and there is no reason to deviate from it. The  expression  ‘his’
is used in the context of an appeal to vote for a candidate  on  the  ground
of the religion, race,  caste,  community  or  language  of  the  candidate.
Similarly, in the context of an appeal to refrain from voting on the  ground
of the religion, race, caste, community or language of  a  rival  candidate,
the expression ‘his’ refers to the rival candidate. The view  is  consistent
with the plain and natural meaning  of  the  statutory  provision.  While  a
strict construction of a  quasi-criminal  provision  in  the  nature  of  an
electoral practice is mandated, the legislative history also  supports  that
view.

45    Section 123(3A) has a different ambit.  It refers to the promotion  of
or attempt to promote hatred between different classes of  citizens  on  the
proscribed grounds.  This has to be by a candidate or  by  any  person  with
the consent of the candidate. The purpose is to further the election of  the
candidate or to prejudicially affect the election of  a  candidate.  Section
123(3A) does not refer to the religion, race, caste, community  or  language
of a candidate or of a rival candidate (unlike  Section  123(3)  which  uses
the expression “his”).  Section  123(3A)  refers  to  the  promotion  of  or
attempts to promote feelings of enmity or hatred between  different  classes
of the citizens of India on grounds of religion, race, caste,  community  or
language. Section 123(3A) cannot be  telescoped  into  Section  123(3).  The
legislature  has  carefully  drafted  Section  123(3)  to  reach  out  to  a
particular corrupt practice, which is even more evident when  the  ambit  of
Section 123(3A) is contrasted with Section 123(3).  One cannot be read  into
the other nor can the text of Section 123(3) be widened on the  basis  of  a
purposive interpretation. To widen Section 123(3) would be  to  do  violence
to its provisions and to re-write the text. Moreover, it would be to  ignore
the context both in terms of our constitutional history  and  constitutional
philosophy. The provisions of an  election  statute  involving  a  statutory
provision  of  a  criminal  or  quasi  criminal  nature  must  be  construed
strictly. However, having due regard to the rationale  and  content  of  the
provision itself, as indicated earlier, there is no reason or  justification
to depart from a plain and  natural  construction  in  aid  of  a  purposive
construction.  The  legislature  introduced  the  expression  “his”  with  a
purpose. A  change  in  the  law  would  have  to  be  brought  about  by  a
parliamentary amendment stating in clear terms  that  ‘his’  religion  would
also include the religion of a voter. In the absence of such  an  amendment,
the expression ‘his’ in Section 123(3) cannot refer to the  religion,  race,
caste, community or language of the voter.

46    Finally, it would be necessary to refer to  the  principle  enunciated
in the judgment of a Constitution  Bench  of  this  Court  in  Keshav  Mills
Company Ltd. v. Commissioner of Income  Tax,  Bombay  North,  Ahmedabad[79].
      A change in  a  legal  position  which  has  held  the  field  through
judicial precedent  over  a  length  of  time  can  be  considered  only  in
exceptional and compelling circumstances. This Court observed thus :

“When it is urged that the view  already  taken  by  this  Court  should  be
reviewed and revised, it may not necessarily be an adequate reason for  such
review and revision to hold that though the earlier  view  is  a  reasonably
possible view, the alternative view  which  is  pressed  on  the  subsequent
occasion  is  more  reasonable.  In  reviewing  and  revising  its   earlier
decision, this Court should ask itself whether in interests  of  the  public
good or for any other valid and compulsive reasons,  it  is  necessary  that
the earlier decision should be revised. When this  Court  decides  questions
of law, its decisions are, under Article 141, binding on all  courts  within
the territory of India, and so,  it  must  be  the  constant  endeavour  and
concern of this Court to introduce and maintain an element of certainty  and
continuity in the interpretation of law in the  country.  Frequent  exercise
by this Court of its power to review its earlier  decisions  on  the  ground
that the view pressed before it later  appears  to  the  Court  to  be  more
reasonable, may incidentally  tend  to  make  law  uncertain  and  introduce
confusion which must be consistently avoided. That is not to say that if  on
a subsequent occasion, the Court is satisfied that its earlier decision  was
clearly erroneous, it should hesitate to correct the  error;  but  before  a
previous decision is pronounced to be  plainly  erroneous,  the  Court  must
satisfied with a fair  amount  of  unanimity  amongst  its  members  that  a
revision of the said  view  is  fully  justified.  It  is  not  possible  or
desirable, and in  any  case  it  would  be  inexpedient  to  lay  down  any
principles which should govern the approach of the  Court  in  dealing  with
the question of reviewing and  revising  its  earlier  decisions.  It  would
always depend upon several relevant considerations :- What is the nature  of
the infirmity or error on which a  plea  for  review  and  revision  of  the
earlier view is based ? On the earlier occasion, did some patent aspects  of
the question remain unnoticed, or was the attention of the Court  not  drawn
to any relevant and  material  statutory  provision,  or  was  any  previous
decision of this Court bearing on  the  point  not  noticed?  Is  the  Court
hearing such plea fairly unanimous that  there  is  such  an  error  in  the
earlier view? What  would  be  the  impact  of  the  error  on  the  general
administration of law or on public  good?  Has  the  earlier  decision  been
followed on subsequent occasions  either  by  this  Court  or  by  the  High
Courts? And, would the reversal of  the  earlier  decision  lead  to  public
inconvenience,   hardship   or   mischief?   These   and   other    relevant
considerations must be carefully  borne  in  mind  whenever  this  Court  is
called upon to exercise its jurisdiction to review  and  review  and  revise
its earlier decisions. These considerations become  still  more  significant
when the earlier decision happens to be a unanimous decision of a  Bench  of
five learned Judges of this Court.”


47    In a recent judgment of a Constitution Bench of this Court in  Supreme
Court Advocates on Record Association v. Union of India[80], this Court  has
considered the circumstances  in  which  a  reconsideration  of  an  earlier
decision can be sought.

Justice Jagdish Singh Khehar while declining the prayer  for  revisiting  or
reviewing the judgment rendered by the Supreme Court in the Second  and  the
Third Judges cases ruled that :

“91. ….This Court having already devoted so much time  to  the  same  issue,
should ordinarily not agree to re-examine the matter yet  again,  and  spend
more time for an issue, already well thrashed out….”



48    Justice Madan B Lokur  while  dealing  with  the  circumstances  under
which the reconsideration of an earlier judgment can be sought,  articulated
certain broad principles: (i) if the decision concerns an interpretation  of
the constitution, the bar for reconsideration might be lowered a  bit;  (ii)
if the decision concerns the imposition of a tax, the  bar  may  be  lowered
since the tax burden would affect a large section of the  public;  (iii)  if
the  decision  concerns   the   fundamental   rights   guaranteed   by   the
constitution, then too the bar might be lowered;  (iv)  the  court  must  be
convinced that the decision is plainly erroneous and has  a  baneful  effect
on the public; (v) if the decision is with  regard  to  a  lis  between  two
contending private  parties  it  would  not  be  advisable  to  revisit  the
judgment; (vi) power to reconsider is not unrestricted or unlimited, but  is
confined  within  narrow  limits  and  must  be  exercised   sparingly   and
judiciously; (vii) an earlier decision may be  reconsidered  if  a  material
provision  is  overlooked  or  a  fundamental  assumption  is  found  to  be
erroneous or if the issue is of fundamental  importance  to  national  life;
(viii) it is not of much consequence if a decision has held the field for  a
long time or not; (ix) the court shall  remain  cognizant  of  the  changing
times that may require re-interpretation keeping in mind the  “infinite  and
variable human desires” and changed  conditions  due  to  “development  with
progress of years”.

49     Justice  Kurian  Joseph  while  agreeing  with  the  discussion   and
summarization of the principles on  reconsideration  of  judgments  made  by
Jusitce Lokur, at paragraph 673, enunciated another principle :

“976…. I would like to add one more, as  the  tenth.  Once  this  Court  has
addressed an issue on a substantial question of law as to the  structure  of
the Constitution and has laid down the law, a request for revisit shall  not
be welcomed unless  it  is  shown  that  the  structural  interpretation  is
palpably erroneous….”.



Justice A K Goel formulated the principle in the following terms:

“1051. Parameters for determining  as  to  when  earlier  binding  decisions
ought to be reopened have been repeatedly  laid  down  by  this  Court.  The
settled principle is that court should not, except when it  is  demonstrated
beyond all reasonable doubts  that  its  previous  ruling  given  after  due
deliberation and full hearing was erroneous, revisit  earlier  decisions  so
that the law  remains  certain.  [Gannon  Dunkerley  and  Co.  v.  State  of
Rajasthan, (1963) 1 SCC 364, paras 28 to 31]In exceptional circumstances  or
under new set of conditions in the light of  new  ideas,  earlier  view,  if
considered mistaken, can be reversed. While march of law continues  and  new
systems can be developed whenever needed, it can be  done  only  if  earlier
systems are considered unworkable.”



50    Applying these parameters no case has been made out to take a view  at
variance with the settled  legal  position  that  the  expression  “his”  in
Section 123(3) must mean the religion, race, community or  language  of  the
candidate in whose favour an appeal to cast  a  vote  is  made  or  that  of
another candidate against whom there is an appeal to refrain from voting  on
the ground of the religion, race,  caste,  community  or  language  of  that
candidate.

51    The Representation of the  People  Act,  1951  has  undergone  several
parliamentary amendments. Parliament would be aware  of  the  interpretation
which has been placed by this Court on the  provisions  of  Section  123(3).
Despite this, the provision has remained  untouched  though  several  others
have  undergone  a  change.  In  the  meantime,  elections  have  been  held
successfully, governments have changed and majorities have been  altered  in
the house of Indian democracy. There is merit in ensuring  a  continuity  of
judicial precedent. The interpretation which  has  earlier  been  placed  on
Section 123(3) is correct  and  certainly  does  not  suffer  from  manifest
error. Nor has it been productive of public mischief. No form of  government
is perfect.  The  actual  unfolding  of  democracy  and  the  working  of  a
democratic  constitution  may  suffer   from   imperfections.    But   these
imperfections cannot be attended to by an exercise  of  judicial  redrafting
of a legislative provision.  Hence, we hold that there is no  necessity  for
this Court to take a view at variance with what  has  been  laid  down.  The
‘his’ in Section 123(3)  does  not  refer  to  the  religion,  race,  caste,
community or language of the voter.  ‘His’ is to be  read  as  referring  to
the religion, race, caste, community or language of the candidate  in  whose
favour a vote is sought or that of another candidate against whom  there  is
an appeal to refrain from voting.

                           ............................................... J
      [ADARSH KUMAR GOEL]


                           ............................................... J
      [UDAY UMESH LALIT]


                           ............................................... J
      [DR D Y CHANDRACHUD]


New Delhi
January  02, 2017
-----------------------
[1]
      (1996) 3 SCC 665
[2]   (2003) 9 SCC 300
[3]   “systematic appeal”
[4]   “his”
[5]   (1996) 3 SCC 665
[6]   This was an erroneous recording
[7]   (1969) 1 SCC 455
[8]   (1996) 1 SCC 130
[9]   AIR 1965 SC 141 : (1964) 7 SCR 790
[10]  S.R. Bommai v. Union of India, (1994) 3 SCC 1
[11]  Abhiram Singh v. C.D. Commachen (Dead), (2014) 14 SCC 382
[12]  Narayan Singh v. Sunderlal Patwa, (2003) 9 SCC 300
[13]  (1964) 6 SCR 750
[14]  (1996) 2 SCC 749
[15]  There has been no substantial change in the language  of  the  statute
since then.
[16]  The submission would equally apply to  an  appeal  on  the  ground  of
caste, race, community or language.
[17]

      100. Grounds for declaring election to be void. - (1) Subject  to  the
provisions of sub-section (2) if the High Court is of opinion -
      (a) xxx xxx xxx
      (b) that any  corrupt  practice  has  been  committed  by  a  returned
candidate or his election agent or by any other person with the  consent  of
a returned candidate or his election agent; or
      (c) xxx xxx xxx
      (d) xxx xxx xxx
      the High Court shall declare the election of  the  returned  candidate
to be void.
[18]

      8-A. Disqualification on ground of corrupt practices. - (1)  The  case
of every person found guilty  of  a  corrupt  practice  by  an  order  under
Section 99 shall be submitted, as soon as may be within a  period  of  three
months from the date such order takes effect],  by  such  authority  as  the
Central Government  may  specify  in  this  behalf,  to  the  President  for
determination  of  the  question  as  to  whether  such  person   shall   be
disqualified and if so, for what period:
      Provided that the period for which  any  person  may  be  disqualified
under this sub-section shall in no case exceed six years from  the  date  on
which the order made in relation to him under Section 99 takes effect.
       11-A.  Disqualification  arising  out  of  conviction   and   corrupt
practices. - (1) If any person, after  the  commencement  of  this  Act,  is
convicted of an offence punishable under Section 171E  or  Section  171F  of
the Indian Penal Code (45 of 1860), or under Section 125 or Section  135  or
clause (a) of sub-section (2) of Section 136 of this Act, he  shall,  for  a
period of six years from the date of the conviction  or  from  the  date  on
which the order takes effect, be disqualified for voting at any election.
      (2) Any person disqualified by a decision of the President under  sub-
section (1) of Section 8A for any period shall be disqualified for the  same
period for voting at any election.
      (3) The decision of the President  on  a  petition  submitted  by  any
person  under  sub-section  (2)  of   Section   8A   in   respect   of   any
disqualification for being chosen as, and for  being,  a  member  of  either
House of Parliament or of the Legislative Assembly  or  Legislative  Council
of  a  State  shall,  so  far  as  may  be,  apply   in   respect   of   the
disqualification for voting at any election incurred  by  him  under  clause
(b) of sub-section (1) of Section 11A of this Act as  it  stood  immediately
before the commencement of the Election Laws (Amendment) Act,  1975  (40  of
1975), as  if  such  decision  were  a  decision  in  respect  of  the  said
disqualification for voting also.


[19]  (1976) 2 SCC 17 decided by a Bench of three learned judges
[20]  (1985) 1 SCC 370 decided by a Bench of three learned judges
[21]  [2003] UKHL 13
[22]  (1945) 148 F 2d 737
[23]  (1877) 2 App Cas 743, 763
[24]  ‘Construing Statutes’, (1999) 2 Statute Law Review 107, p.108   quoted
in ‘Principles of Statutory  Interpretation’  by  Justice  G.P.  Singh  14th
Edition revised by Justice A.K. Patnaik at page 34
[25]  Sixth Edition (Indian Reprint) page 847
[26]       Stock v. Frank Jones (Tipton) Ltd., [1978] 1 WLR 231 at 234
[27]  (1584) 3 Co Rep 7a
[28]  (1989) 2 SCC 754
[29]  Oliver Wendell Holmes: The Common Law page 5
[30]  Oliver Wendell Holmes : Common Carriers and the Common Law,  (1943)  9
Curr LT 387, 388
[31]  Julius Stone : Legal Systems & Lawyers Reasoning, pp. 58-59
[32]  Roscoe Pound : An Introduction to the Philosophy of Law, p. 19
[33]  Pp 25-26
[34]  (1974) 2 SCC 402
[35]  (2014) 1 SCC 188
[36]  (1955) 1 SCR 608
[37]


       (2003) 9 SCC 300
[38]  (1969) 1 SCC 455
[39]  (1996) 1 SCC 130
[40]  (1964) 7 SCR 790
[41]  (1994) 3 SCC  1
[42]  (1996) 3 SCC 665
[43]  (2014) 14 SCC 382
[44]  Section 123(3) was substituted by amending  Act  40  of  1961,  w.e.f.
20.9.1961.
[45]  Section 98 : Decision of the High Court – At  the  conclusion  of  the
trial of an election petition [the High Court]     shall make an order –


[46]  (1951) 1 SCR 158

[47]  (1977) 3 SCC 566

[48]  (1996) 2 SCC 743

[49]  (1999) 8 SCC 74

[50]  (2003) 4 SCC 642

[51]  (2013) 9 SCC 659

[52]  The same holds in the case of race, caste, community or language of  a
candidate.

[53]  Act 27 of 1926

[54]  [Act 58 of 1958]

[55]  XIVth Edn. P-253

[56]  72.State of Mysore v. R.V. Bidop, AIR 1973 SC  2555  :  (1973)  2  SCC
547; Fagu Shaw v. State of W.B., AIR 1974 SC 613, p.628, 629 : (1974) 4  SCC
(Cri.) 316: 1974 SCC 152; Union of India v. Sankalchand, AIR 1977  SC  2328,
p. 2373 : (1977) 4 SCC 193  :  1977  SCC  (Lab)  435;  R.S.  Nayak  v.  A.R.
Antulay, (1984) 2 SCC 183, pp. 214, 215 : AIR 1984 SC 684; B. Prabhakar  Rao
v. State of Andhra Pradesh, AIR 1986 SC 210, p. 215 :  1985  Supp  SCC  432;
Sub-Committee of Judicial Accountability v. Union  of  India,  AIR  1992  SC
320, p. 366 : (1991) 4 SCC 699.

[57]  AIR 1952 SC 366

[58]  (1964) 1 SCR 371

[59]  AIR 1951 SC 41

[60]  AIR 1993 SC 477

[61]  (2013) 6 SCC 1)

[62]  (1972) 1 SCC 298

[63]  AIR 1976 SC 879

[64]  AIR 1981 SC 1922

[65]  (199) 4 SCC 306

[66]  “Theyssen Stahlunia GMBH v. Steel Authority of India,  JT  1999(8)  SC
66, P.105: (1999) 9 SCC 334: and Haldiram Bhujiawala v. Anand  Kumar  Deepak
Kumar, AIR 2000 SC 1287, P.1291: (2000) 3 SCC  250,  Mahalaxmi  Sugar  Mills
Ltd. v. Union of India, AIR 2009 SC 792 paras 67 to 73 : (2008 6 SCALE 275

[67]  (1995) 7 SCALE 1

[68]  Indian Reprint Sixth Edition page 561

[69]  (1964) 6 SCR 750 [judgment delivered on 12 February 1964]

[70]  AIR 1965 SC 141 [Judgment delivered on 17 April 1964]

[71]  (1969) 1 SCC 455

[72]  (1969) 3 SCC 492

[73]  (1976) 2 SCC 17

[74]  (1996) 1 SCC 130

[75]  (1996) 1 SCC 169

[76]  (2005) 5 SCC 46

[77]  (1994) 3 SCC 1

[78]  (1996) 2 SCC 749

[79]  (1965) 2 SCR 908

[80]  (2016) 5 SCC 1



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