Name of Judgment – Abhiram Singh v. C.D. Commachen (dead) by Lrs. & Ors.

Court Name-Supreme Court of India

Date of Judgment-2 January, 2017

Citation-Civil Appeal No. 37 of 1992; Civil Appeal No. 8339 of 1995

Bench Name-Hon’ble Chief Justice Mr. T. S. Thakur, Hon’ble Justice Mr. Adarsh Kumar Goel, Hon’ble Justice Uday Umesh Lalit, Hon’ble Justice Mr. Madan B. Lokur, Hon’ble Justice Mr. Nageswara Rao, Hon’ble Justice Mr. S.A. Bobde, Hon’ble Justice Dr. D.Y. Chandrachud

Summary of Facts- This case was interpretation of Section 123(3) of Representation of the People Act, 1951.Abhiram Singh, a BJP up and comer challenging from Santa Cruz electorate in Mumbai in 1990, was blamed for having enjoyed degenerate practices by speaking to the voters on the ground of religion. The issue came up under the watchful eye of the Supreme Court which at that point needed to discover the extent of Section 123 of the Representation of the People Act, 1951. Abhiram Singh was chosen for the No. 40 of Santa Cruz Legislative Assembly Constituency 1990 for the Maharashtra State Assembly and his political decision was tested by Commachen in the Bombay High Court.

A bench of three judges on April 16, 1992, communicated the view the substance, scope and what comprises a degenerate practice (corrupt) under sub-section (3) or (3A) of Representation of the People Act, 1951should be set obviously to maintain strategic distance from a premature delivery of equity in deciphering “degenerate practices”

In Narayan Singh v. Sunderlal Patwa¹, the appointment of Sunderlal Patwa from the Bhojpur Constituency no. 245 in the Madhya Pradesh to the Legislative Assembly of 1993, was under test of the ground of degenerate practice, in that the returned up and comer had purportedly made an orderly intrigue (appeal) on the ground of religion infringing upon Section 123(3) of the Representation of the People Act. In the view of certain observations, while the five judge bench was hearing the case of Abhiram Singh case on January 30, it was learned that an indistinguishable issue was brought up in the political race appeal recorded by one Narayan Singh against BJP pioneer Sunderlal Patwa and another Constitution Bench of five judges of the Apex Court has alluded to a bigger bench of seven judges.

Thereafter Abhiram Singh was taken up for the consideration by the Constitution Bench an order was made- “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 Section 123(3) of 1951 Act to a larger bench of seven judges.”

Issues Raised-

§  Whether the words “his religion” in Section 123(3) of the Representation of the People Act, 1951, has confined the degree to just incorporate the religion of the competitor or his operator or some other individual with the assent of the applicant or have extended to incorporate the religion of the voters too.

§  Whether the Section 123(3) of Representation of the People Act, 1951, violated Article 19(1) A of the Indian Constitution which ensures the privilege to the right to speak freely of discourse and articulation, as it confines the competitor’s political discourse to some gauge.

Contentions from both the sides- There can be no doubt that the word “his” used in the sub-section (3) must have significance and it cannot be ignored 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 basis to the appeal to vote or to 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 obvious from the plain language of sub-section (3) and this is the main way wherein the word “his” utilized in that can be interpreted or constructed. 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 is appeal based on the religion of candidate whose election is sought to be prejudicially affected. It is hence certain that for requesting votes in favor of an up and comer, the intrigue (appeal) disallowed (prohibited) is what made on the ground of religion of the other candidate for whom the votes are looked for; and when the intrigue is to avoid deciding in favor of up-and-comer, the forbiddance is against an intrigue on the ground of the religion of the other up-and-comer.

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).

Judgment of the Case- Sub-section (3) of Section 123 Representation of the People Act, 1951 treats an appeal to the electorate to vote on the basis of religion, race, caste and 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.

The 7 Judge Bench conveyed a milestone decision, whereby dominant part of 4:3, the lion’s share judgment conveyed by Justice Lokur with agreeing judgments by  Chief Justice T.S. Thakur and Justice Bobde.

Justice Madan B. Lokur examines the history of this provision of RoPA; its earlier drafts, the discussions in the parliament, the amendments and why such amendments were being introduced. He looks at the purpose that was trying to be achieved in Parliament by amending Section 123 and concludes that a wide interpretation serves this purpose. Less certain is his use of ‘social context’ to justify this purposive interpretation. No doubt a law must be interpreted in the social context in which it is required to be applied whether this should be mean that the meaning of law should change over years is highly debatable.

Justice SA Bobde on the other hands takes the view that even a literal interpretation of the provision in the question leads to the wide interpretation suggested. His view is that the word “his” can refer to either the voter or the candidate, and should, give the intent of the act, be given this wide meaning.

Chief Justice T.S. Thakur’s opinion (which seems to be deciding vote in the matter), is premised on the principle that appeals to religion tend to erode the secular character of the Constitution and the wider interpretation must be preferred to keep such appeals out of the picture during elections. He does not refer to caste or any other grounds in Section 123(3).

Whereas the minority judgment, authored by Justice D.Y. Chandrachud, calls for a literal interpretation of the concerned provision, holding the term “his” can only refer to the candidate’s identity or affiliation. He doesn’t entirely discard the purposive interpretation either, finding that merit of the narrow interpretation is that it enables appeals made to protect the rights of religious, linguistic and caste minorities in India. While the argument in favor of literal interpretation is quite persuasive, there are no reasons to reject it in the case.

To keep up national uprightness and harmony among the residents of the nation and to keep up the mainstream character of the pluralistic culture to which  have a place sections 123 and 123 (3A) of the Representation Act have been joined. Keeping up immaculateness in the political decision process and for keeping up harmony in the social texture, it turns out to be important not exclusively to prosecute the gathering to a political decision liable of degenerate practice (corrupt practices) yet to name the partners of such degenerate practice if there be any. The bench interpreted the statute literally and followed different cases such as Ambika Sharan Singh v. Mahant Mahadeva Giri and Ors²; Dr. Vimal (Mrs.) v. Bhaguji & Ors³; M.P. Gopalakrishnan Nair and Anr. v. State of Kerala and Ors⁴; etc.  

This concluded that appeal on the grounds of Religion-be it the applicant, the specialist of up-and-comer, any individual with the assent of the up-and-comer, or even the religion of voters would add up to a degenerate practices. The greater part in this judgment gave a wide development to the expressions of Section 123 of RoPA; and has extended its limits to take in any appeal on the grounds of religion, language, rank or race.

The five Judge Bench of the Supreme Court in 1954 while dealing with the Case, held that the regulation of election speech did not violate Article 19(1)(a) of the Indian Constitution because it was not a restriction upon speech, but only placed certain conditions upon persons who wanted to stand for elections. The main idea being, that a citizen was free not to stand for elections, and engage in uninhibited free speech.

Therefore, appeal for the sake of religion, race, station, network or language is impermissible under the Representation of the People Act, 1951 and would establish a corrupt practice adequate to abrogate the political decision in which such appeal was made in any case whether the appeal was for the sake of the up-and-comer’s religion or the religion of the political decision specialist or that of the adversary or that of the voter’s. The entirety of Section 123 (3) significantly after alteration is that appeal for the sake of religion, race, station, network or language is taboo in any event, when the appeal may not be for the sake of the religion, race, standing, network or language of the possibility for which it has been made. 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 RoPA, 1951.

Other Related Cases- Singh Sidhanti v. Pratap Singh Daulta⁵; Kultar Singh v. Mukhtiar Singh⁶;Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte & Ors⁷ etc.

Comments on the Case-

Justice Madan B. Lokur, one of the four majority judges in this case, was prescient when he said way back in 2008: “Secularism is like wine; the more it stays it matures better and tastes good”. Secularism is an ideal in our Constitution which political parties have ignored repeatedly. While the Supreme Court has shown the way, it is now upon the political parties in India and their candidates who have the ethical responsibility to uphold this decision and thereby overcome the hurdles in the practice of secular ideals.

 According to me, getting the law right is only the half the battle in clearing up electoral process in India. The task of effective enforcement, here resting on the overburdened high courts who decide election petitions under the RoPA, still lies ahead if this ruling isn’t to remain nice words on paper and it’s hard to see how the majority’s interpretation of Section 123(3) would stand in the way of a candidate promising to protect constitutional guarantees and rights in favor of a certain group, who have been discriminated or oppressed by membership of that group (as the minority judgment fears). Unmistakably, the exacting translation of Section 123(3) made by the minority judgment is more thoroughly considered, while the purposive elucidation by the greater part judgments offers a cure more terrible than the infection. As the dominant part judgments with every one of their imperfections are the tradition that must be adhered to, Indian vote based system has been rendered more illiberal by its Supreme Court. In spite of the fact that it had raised desires of fixing the harm done by its 1995 Hindutva judgment, the Supreme Court wound up irritating the issue, regardless of all its talk about the immaculateness of the constituent procedure. In the event that anything, with its clearing assault on personality based concerns, the Supreme Court has put forth a profoundly political expression by privileging issues like improvement and patriotism over social equity. [1]