SAMBHAV LAW CASE LAW BRIEF | ABHIRAM SINGH VS C.D. COMMACHEN | PAGE NO.
Abhiram Singh vs C.D. Commachen
(Use of Representation of the People Act, 1951 to constitute appeals to ascriptive
identities of voters a ‘corrupt practice’)
Bench- 7 Judges
Justice Madan B. Lokur ……………………………………………(Majority Judgement)
Justice T.S. Thakur………………………………………………….(Concurring Judgement)
Justice L. Nageshwar Rao…………………………………………..(Concurring Judgement)
Justice S.A. Bobde………………………………………………….(Concurring Judgement)
Justice Dr. D.Y. Chandrachud………………………………………(Dissenting Judgement)
Justice Adarsh K. Goel……………………………………………..(Dissenting Judgement)
Justice U.U. Lalit…………………………………………………...(Dissenting Judgement)
SAMBHAV LAW CASE LAW BRIEF | ABHIRAM SINGH VS C.D. COMMACHEN | PAGE NO. 2
Author: Justice Madan B. Lokur
Citation: 2017 SCC OnLine SC 9
Date of Judgement: 2nd January, 2017
Case Description:
In this case, the 7-Judge Bench held that 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.
Background:
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, Santa Cruz Legislative Assembly
Constituency in 1990 for the Maharashtra State Assembly and his political decision was
tested by Commachen in the Bombay High Court.
While hearing the intrigue, a Bench of three Judges, on April 16, 1992, communicated the
view that the substance, scope and what comprises a degenerate practice under sub-section
(3) or (3A) of Section 123 of the Representation of the People Act, 1951 should be set down
obviously to maintain a strategic distance from a premature delivery of equity in deciphering
‘degenerate practice’.
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The Bench was of the opinion that the intrigue requires to be heard and chose by a bigger
Bench of five Judges of the Court. In Narayan Singh v. Sunderlal Patwa, the appointment of
Sunderlal Patwa from the Bhojpur Constituency No. 245 in Madhya Pradesh to the
Legislative Assembly in 1993, was under test on the ground of degenerate practice, in that the
returned up-and-comer had purportedly made an orderly intrigue on the ground of religion
infringing upon Section 123(3) of the Representation of the People Act.
The High Court for the situation translated the arrangement of sub-section (3) of Section 123
of the Representation of People’s Act to imply that, it won’t be a degenerate practice when
the voters having a place with some other religion are bid, other than the religion of the
applicant. This development picks up help from a three-Judge Bench choice of this Court in
Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel just as the consequent
choice of this Court in Ramesh Yeshwant Prabhoo (Dr) v. Prabhakar Kashinath Kunte.
While the five-Judge Bench was hearing the 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.
From there on, an Order was made that “since one of the questions engaged with the present
intrigue is as of now alluded to a bigger Bench of seven Judges, we think it suitable to allude
this intrigue to a constrained degree in regards to the translation of sub-section (3) of Section
123 of the 1951 Act to a bigger Bench of seven Judges.”
Issues Raised:
● Regardless of 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.
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● Regardless of whether section 123(3) of the Representation of the People Act, 1951,
damaged 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.
Petitioners Arguments:
● That sub-section (3) of Section 123 of the Act must be given a literal interpretation. It
was submitted that the bar to making an appeal on the ground of religion[16] must be
confined to the religion of the candidate – both for the furtherance of the prospects of
the election of that candidate or for prejudicially affecting the election of any
candidate. The text of sub-section (3) of Section 123 of the Act cannot be stretched to
include the religion of the elector or that of the agent or that of the person making the
appeal with the consent of the candidate.
● That this a facet of the first submission, it was submitted that sub-section (3) of
Section 123 of the Act ought to be given a restricted application since the civil
consequence that follows from a corrupt practice under this provision is quite severe.
If a candidate is found guilty of a corrupt practice the election might be declared
void[17] and that candidate might also suffer disqualification for a period of six years
in accordance with Section 8-A read with Section 11-A of the Act.[18] Therefore, a
broad interpretation of sub-section (3) of Section 123 of the Act must be eschewed
and it should be given a restricted interpretation.
● That 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.
● That 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
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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.
● That 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.
Respondents Arguments:
● 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 the candidate whose election is sought to be prejudicially affected.
It is hence certain that for requesting votes in favour 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).
Held:
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
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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).
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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
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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.
Important Provisions:
Section 123(3) of Representation of the People Act, 1951:
123. Corrupt practices.—The following shall be deemed to be corrupt practices for the
purposes of this Act:
(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.] 8[(3B) The propagation of the practice or the
commission of sati or its glorification by a candidate or his agent or any other person with the
consent of the 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.
Explanation.—For the purposes of this clause, “sati” and “glorification” in relation to sati
shall have the meanings respectively assigned to them in the Commission of Sati (Prevention)
Act, 1987 (3 of 1988).]
Article 19(1) of the Constitution of India:
(1) All citizens shall have the right
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(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business
Important Cases:
● Dr. Ramesh Yeshwant Prabhoo vs Prabhakar Kashinath Kunte:
The Hon’ble Court held in this case that 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.
● Jagdev Singh Sidhanti vs Pratap Singh Daulata:
The Hon’ble Court in this case held that there is a distinction between a religious
symbol and a symbol bearing high religious efficacy!. Clearly, a chicken could go
where an Om could not, and it set a new trend by which courts declined to get caught
up in semantic fine points about what was or was not an appeal to religion. Judicial
reluctance to get caught up in religious soapbox oratory then became the order of the
day.
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● Kultar Singh vs Mukhtar Singh:
The Hon’ble Court in this case held that the use of the word 'panth' did not signify the
Sikh religion.
● Shubhnath Deogram vs Ram Narain Prasad:
The Hon’ble Court in this case held that it is illegal to accuse those who do not vote
for a particular symbol of being irreligious.
