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
