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 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.

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2. In Abhiram Singh v. C.D. Commachen1 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 Patwa2 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

1

(1996) 3 SCC 665 2(2003) 9 SCC 300

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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 words3 from the

sub-section widened the scope of the sub-section while the addition of a word4

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. Commachen5. 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 Patel7 as well as the subsequent decision of this Court in Ramesh Yeshwant Prabhoo (Dr) v. Prabhakar Kashinath Kunte8. 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  Singh9 while  noticing  the provisions of Section 123(3) of the Act. There are certain observations in  Bommai case10,  where this  provision did not directly came up for

3“systematic appeal” 4“his” 5(1996) 3 SCC 665 6This was an erroneous recording 7(1969) 1 SCC 455 8(1996) 1 SCC 130 9AIR 1965 SC 141 : (1964) 7 SCR 790  10S.R. Bommai v. Union of India, (1994) 3 SCC 1

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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  made11 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

11Abhiram Singh v. C.D. Commachen (Dead), (2014) 14 SCC 382 12Narayan Singh v. Sunderlal Patwa, (2003) 9 SCC 300

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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 Daulta13.  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:

13(1964) 6 SCR 750

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“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

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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

India14 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

14(1996) 2 SCC 749

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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

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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

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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

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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,

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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

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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

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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.   

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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

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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,

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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:

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“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.

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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

196115 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.

15There has been no substantial change in the language of the statute since then.

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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 religion16 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 void17 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

16The  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

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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.

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.

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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

Mehra19 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

19(1976) 2 SCC 17 decided by a Bench of three learned judges

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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

Quintavalle21 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

20(1985) 1 SCC 370 decided by a Bench of three learned judges 21[2003] UKHL 13

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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 Markham22 Justice  Learned  Hand  explained  the  merits  of  purposive interpretation, at p 739:

22(1945) 148 F 2d 737

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“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 Adamson23.  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 Interpretation25 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

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 25Sixth Edition (Indian Reprint) page 847 26     Stock v. Frank Jones (Tipton) Ltd., [1978] 1 WLR 231 at 234 27(1584) 3 Co Rep 7a

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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,

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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

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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: 28(1989) 2 SCC 754

                                                                                          28

Page 29

29  

“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 study30 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 Maker33 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].

29Oliver Wendell Holmes: The Common Law page 5 30Oliver Wendell Holmes :  Common Carriers and the Common Law, (1943) 9 Curr LT

387, 388 31Julius Stone : Legal Systems & Lawyers Reasoning, pp. 58-59 32Roscoe Pound : An Introduction to the Philosophy of Law, p. 19

33Pp 25-26

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30  

44. Similarly, in Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of

Greater Bombay34 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 Godse35 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].

34(1974) 2 SCC 402 35(2014) 1 SCC 188

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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.

                                                                                          31

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Lachhi Ram36 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.

36(1955) 1 SCR 608

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Conclusion

49. On a consideration of  the  entire  material  placed before us  by learned

counsels, we record our conclusions as follows:

1. 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.

2. 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.

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3. 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 )

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35  

             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                                    ... Respondents

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

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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.”

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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.

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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

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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

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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

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41  

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:-

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42  

“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

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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

                                                                                          43

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44  

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:

(i) 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;

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45  

(ii) the appeal was systematic;

(iii) 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

(iv) 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

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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, -

(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;

(iii) (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.

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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

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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

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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

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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

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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

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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.  

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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

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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

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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

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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.”

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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

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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

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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

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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 :

(i) In Narayan Singh v. Sunderlal Patwa37, 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

37

(2003) 9 SCC 300

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construction was supported by three Judge Bench decisions of this

Court  in  Kanti  Prasad Yagnik  v. Purshottamdas Patel38 and  Dr

Ramesh  Yashwant  Prabhoo  v.  Prabhakar  Kashinath  Kunte39.

There were observations of the Constitution Bench in Kultar Singh

v. Mukhtar Singh40 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

India41, 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

38(1969) 1 SCC 455 39(1996) 1 SCC 130 40(1964) 7 SCR 790 41(1994) 3 SCC  1

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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 199642. When the civil appeal came up

before a Constitution Bench43, 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

42(1996) 3 SCC 665 43(2014) 14 SCC 382

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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

44Section 123(3) was substituted by amending Act 40 of 1961, w.e.f. 20.9.1961. 45Section 98 : Decision of the High Court – At the conclusion of the trial of an election petition [the High Court]

shall make an order –  

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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

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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.  

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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 Bombay46 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

46 (1951) 1 SCR 158

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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. Bhagwandas47. 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

47 (1977) 3 SCC 566

48 (1996) 2 SCC 743

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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 Ravi49, 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)

49 (1999) 8 SCC 74

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In Bipinchandra Parshottamdas Patel (Vakil) v. State of Gujarat50, 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)

50 (2003) 4 SCC 642

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Construing the provisions of Section 123, a Bench of two Judges of this Court

in S Subramaniam Balaji v. State of Tamil Nadu51, 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.  

51 (2013) 9 SCC 659

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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

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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

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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

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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  election52.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

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

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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

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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

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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

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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

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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

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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

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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  

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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 law53 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

53 Act 27 of 1926

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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 Act54 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:

54 [Act 58 of 1958]

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(i) The  expression  “systematic  appeal”  was  altered   to  simply  an

“appeal”;

(ii) 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’;

(iii) In  addition to  religion,  race,  caste and community, a reference to

‘language’ was introduced;  

(iv) 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.

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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,

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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,

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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

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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

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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

Interpretation55, 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

55 XIVth Edn. P-253

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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.”

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

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In  State of  West Bengal v.  Union of India58,  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 India59, 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 India60). 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 India61); 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  Syndicate63,  K.P.

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

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Vergese  v. Income  Tax  Officer64,  Surana  Steels  Pvt.  Ltd.  v. Dy

Commissioner of Income Tax65].

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.”

64 AIR 1981 SC 1922

65 (199) 4 SCC 306

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The use of  parliamentary debates as an aid to statutory interpretation has

been noticed in several decisions of this Court66.  

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 Kunte67.

35 In  Bennion  on  Statutory  Interpretation68,  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.”

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

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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

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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  

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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 Daulta69, 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

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

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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 Singh70, 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 70 AIR 1965 SC 141 [Judgment delivered on 17 April 1964]

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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)

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In  Kanti  Prasad  Jayshanker  Yagnik v.  Purshottam  Das  Ranchhoddas

Patel71, 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 Giri72, 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

71 (1969) 1 SCC 455

72 (1969) 3 SCC 492

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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 Ramdas73. 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 Kunte74,

the  provisions  of  Section  123(3)  were  construed  and  it  was  held  that  an

73 (1976) 2 SCC 17

74 (1996) 1 SCC 130

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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 Patil75.  This

Court held that :

75 (1996) 1 SCC 169

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“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 Talwandi76  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

76 (2005) 5 SCC 46

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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 India77, 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

77 (1994) 3 SCC 1

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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

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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

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wish to say anything more on this subject”. (emphasis supplied)

In Mohd. Aslam v. Union of India78, 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

78 (1996) 2 SCC 749

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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

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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.  

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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,  Ahmedabad79.

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

79 (1965) 2 SCR 908

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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 India80, 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….”

80 (2016) 5 SCC 1

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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 :

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“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).

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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

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