Holding

Section 123(3) of the Representation of the People Act, 1951, must be given a broad, purposive interpretation so that the term "his" refers to the religion, race, caste, community or language of the candidate or rival candidate, not the voter.

Summary

The Supreme Court was asked to interpret Section 123(3) of the Representation of the People Act, 1951, specifically the meaning of the pronoun "his" and whether the provision bars appeals based on religion, race, caste, community or language of the candidate, rival candidate, or the voter. The majority, led by Justice Lokur, adopted a broad, purposive interpretation, holding that the provision covers appeals made by a candidate, his agent, or any person with their consent, on the ground of the religion, race, caste, community or language of any candidate or rival candidate, but not the voter. The minority view, advanced by Justice Chandrachud, favoured a strict, literal construction limiting the bar to the candidate's own attributes. The Court affirmed the majority view, emphasizing the Act's purpose to preserve secular democratic elections, and answered the reference, directing the matter to the Chief Justice for further orders.

Issues considered

The proper construction of Section 123(3) of the Representation of the People Act, 1951, especially the scope of the word "his".
Whether the provision applies to appeals based on the religion, race, caste, community or language of the voter.
Whether a purposive or literal interpretation should govern the meaning of a quasi‑criminal electoral provision.

Legislation cited

Indian Penal Code, 1860s. 153A, s. 171E, s. 171F, s. 295A, s. 505
Representation of the People Act, 1951s. 11A, s. 123(3), s. 123(3A), s. 124(5), s. 125, s. 139, s. 141, s. 8A, s. 98(b), s. 99

Subjects

Representation of the People ActSection 123(3)purposive interpretationliteral interpretationelectoral corruptionreligious appealsecularismstatutory constructionquasi‑criminal provisionelection petition

Judgment

[2017] I S.C.R. 158

A ABHIRAM SINGH
v.
C.D. COMMACHEN (DEAD) BY LRS. & ORS.
(Civil Appeal No. 37of1992)
B JANUARY 02, 2017
[T. S. THAKUR, C.J.l., MADAN B. LOKUR, S. A. BOBDE,
ADARSH KUMAR GOEL, UDAY UMESH LALIT,
DR. D.Y. CHANDRACHUD AND L. NAGESWARA RAO, JJ.)
Representation of the People Act, 1951:
c
s. 123 (3) (as amended in 1961) - Interpretation of - Held:
Majority View: The Act being a statute that enables to cherish and
strengthen democratic ideals should be interpreted in a manner that
assists the elector or 1he electorate and not that assists the
candidates - Keeping in view the social context in which sub-section
D
(3) of s.123 was enacted and today's social and technological
context, ii is absolutely necesswy to give a broad and purposive
interpretation rather than a literal or strict interpretation - The
provisions under sub-section (3) are required to be read and
appreciated in the context of simultaneous and contemporaneous
E amendmellls inserting sub-section (3Aj in s. 12 3 and inserting
s. 153A in !PC - Therefore sub-section (3) of s. 123 is to be
interpreted in such a way so as to bring within sweep of 'corrupt
practice', any appeal 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 appeal with the consent of the candidate,
F
or (iv) the elector - The bar uls. 123 (3) to making an appeal on the
ground of religion must not be confined to the religion of the
candidale or that of his rival candidates - The word 'his' occurring
in the Section refers not only lo the candidate or his agent, but is
also intended to refer to the vol er or elector - Determination of the
G facts whether an appeal, at all, has been made to the elector and
whether appeal made, is in violation of s. 123(3), would be a matter
of evidence - Minority view: Election petitions alleging corrupt
practices have a quasi-criminal character wherein standard of proof
is close to that which guides a criminal trial - Therefore, s.123(3)
must be interpreted in literal sense - The expression 'his' ins. 123(3)
H
158
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 159
ORS.

used in conjunction with religion, race, caste, co111111unity or A
language is in reference to the religion, race, caste, community or
language of the candidate (in whose favour the appeal to caste a
vote is made) or tho( of a rival candidate (when an appeal is made
to refrain from voting for another) - Sub-section (3) cannot be
construed as referring to the religion, race, caste, commu/1ity or
B
language of the voter, even if the provision is given a purposive
interpretation - Discussion, debate or dialogue, of matters relating
to religion, race, caste, community or language of the voters is not
an appeal on those grounds, and the sa111e is protected being an
intrinsic part of freedom of speech.
s.123(3) - Long-standing interpretation of given by the courts c
- Unsettling of - Permissibility - Held: Per Madan B. Lokur, J.:
The interpretation given to s.123(3) was not well recognized ani
there was uncertainty about correct interpretatio11 thereof. the court
can unsettle the long-standing interpretation - Per: Dr. D. Y.
Chandrachud, J.: A change in the legal position, 11'hich has held D
the field through judicial precedent over a length of time can be
considered only in exceptional and compelling circumstances - In
the preselll cases no case has been made out to take a viell' at
variance with the settled legal position that the expression 'his' in s. ·
123 (3) must mean the religion, race, community or language of the
candidate - Precedent. E
Interpretation of Statutes:
[,iteral interpretation vis-a-vis purposive interpretation - Per
Madan B. Lokur, J.: While imerpreting a statute or a provision in
a statute, not only the text of the law; but also the co11text in which F
it was enacted and the social context, should be considered -
However, in statutes having penal consequence, affecting liberty
of an individual or imposing financial burden on a person, the rule
of literal interpretation would still hold good - Per T.S. Thakur,
C.J.I.: While interpreting an enactment, the courts should remain
cognizant of constitutional goals and the purpose of the Act and G
interpret the provisions accordingly - Per S.A. Bobde, J.: A literal
interpretation does not exclude a purposive interpretation - While
construing a statute both the rules of interpretatio11 ca11 be applied
whether it be penal statute or taxing statute - Per Dr. D.Y.
Chandrachud, J.: Where a statut01y provision implicates penal H
160 SUPREME COURT REPORTS (2017] I S.C.R.

A consequences or consequences of a quasi-criminal character, a strict
construction of the words used by the legislature must be adopted.
Rule of Interpretation - Per T. S. Thakur, C.J.I.: An
interpretation which has the effect of eroding or diluting the
constitutional objective of keeping the State and its activities free
B from religious considerations, must be avoided - The interpretations
that are in tune with constitutional provisions and ethos ought to be
preferred over others.
Rule of interpretation-Per S.A. Bobde, J.: While interpreting
statutes, wherever the language is clear, the intention of the
c legislature must be gathered from the language used, and the support
from extraneous sources should be avoided.
Statutory interpretation - Use of legislative history as an aid
to statutory interpretation - Permissibility - Held: Per Dr. D.Y.
Chandrachud, J.: Legislative history is a significant element in the
o formation of an informed interpretation.
Answering the reference, the Court
HELD: MAJORITY VIEW: Per Madan B. Lokur, J. (For
himself and for L. Nageswara Rao, J.):
1.1 The conflict between giving a literal interpretation or a
E
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
F law but the context in which the law was enacted and _the social
context in which the law should be interpreted. [Para 36] [197-D]
R. v. Secretary of State ji;r Health ex parle Quintavalle
[2003] UKHL 13 - referred to.
Bennion on Statutory Interpretation Sixth Edition
G (lndian Reprint) page 847 - referred to.
1.2 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, what is intended for the benefit of the people is not
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 161
ORS.

fully reflected in the text of a statute. [n such legislations, a 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 affectthe liberty of an individual or a statute that could im1JOsc
a financial burden on a person, the rule of literal interpretation
B
would still hold good. [Para 38] [200-B-D]
l .3 The Representation of the People Act, 1951 is a statute
that enables to cherish and strengthen democratic ideals. To
interpret it in a manner that assists candidates to an election
rather than tl\e elector or the electorate in a vast democracy like
that ofltldi~ would really be going against public interest. [Para c
39) (200-D-E)
1.4 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
whicl1 Parliament grappled 'yith the necessity of curbing D
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 (elt it necessary to put some fetters on the E
language that might be used so that the democratic process is
not derailed but strengthened. Taking all this into consideration,
Parliament felt. the need to place·a strong check on corrupt
practices based on an appeal on grounds of religion during election
campaigns (and even otherwise). (Para 41] [200-H; 201-A-B]
F
1.5 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,throngh the
internet and social media as well as mobile phone technology,
none of which were seriously contemplated till about fifteen years G
·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. [Para 42] (201-C-DI H
162 SUPREME COURT REPORTS [2017] I S.C.R.

A 1.6 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 i.e. limited only to the candidate's religion
or that of his rival candidates. [Para 46) (203-G-H]
B
Union of India v. Raghubir Singh (Dead) by Lrs. [1989]
3 SCR 316 : (1989) 2 SCC 754; Magan/al Chhaganla/
(P) Ltd. v. Municipal Corporation of Grea/P" Tfombay
(1975] 1 SCR 1 : (1974) 2 SCC 402; Badshah" Urmila
Badshah Godse [2013] 10 SCR 259 : (2014) 1 SCC
c 188 - relied on.
1. 7 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) iu
D Section 123 of the Act and inserting Section 153A in the Penal
Code. [Para 49] [205-C]
1.8 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
E 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
F 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.
[Para 49] [205-D-Fj

G 1.9 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. [Para 49)
(205-F-GJ
2. There was some uncertainty about the correct
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 163
ORS.

interpretation of sub-section (3) of Section 123 of the Act. It is A
not as if the interpretation was well-recognized and settled. That
being the position, the court can unsettle the long-standing
interpretation given to s. 123(3) of the Act. [Para 48] [205-A].
Ku/tar Singh v. Mukhtiar Singh AIR 1965 SC 141 :
[1964] SCR 790 - followed. B
Jagdev Singh Sidhanti v. Pratap Singh Dau/ta [1964]
6 SCR 750; Kanti Prasad Jayshanker Yagnik v.
Purshottamdas Ranchhoddas Patel. [19691 3 SCR 400
: (1969) 1 SCC 455; Dr Ramesh Yeshwa11t Prabhoo v.
Prabhakar Kashinath Kunte [1995] 6 Suppl. SCR 371:
(1996) 1 sec 130 - held not correct law. c
· Abhiram Singh v. C.D. Commachen [1996] 1 Suppl.
SCR 340 : (1996) 3 SCC 665; Narayan Singh v.
Sunder/al Fatwa (2003) 9 SCC 300; Mohd. Aslam v.
Union of India [1996] 3 SCR 782 : (1996) 2 SCC 749;
S. R. "Bommai v. Union qf India [1994] 2 SCR 644 : D
(1994) 3 SCC 1; Ziyauddi11 Burhanuddin Bukhari v.
Brijmohan Ramdass Mehra [1975] Suppl. SCR 281 :
(1976) 2 SCC 17; S. Hareharan Singh v. S. Sajjan
Singh [1985] 2 SCR 159 : (1985) 1 SCC 370; Jamuna
Prasad Mukhariya v. Lachhi Ram [1955] 1 SCR 608 -
referred to. E
Per T.S. Thakur, C.J.I. (Concurring)
1. It cannot be said that the amendment in 1961, in one
sense served to widen the scope of corrupt practice n/s. 123(3)
of Representation of People Act, 1951, but in another sense
restrict the scope of corrupt practice. The unamended provision F
made any appeal in the name of religion, race, caste, community
or language a corrupt practice, regardless of whose religion, race,
caste, community or language was involved for such an appeal.
The only o.ther requirement was that such an appeal was made in
a systematic manner for the furtherance of the prospects of a
G
candidate. If that was the legal position before the amendment
and if the Parliament intended to enlarge the scope of the corrupt
practice, 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 H
164 SUPREME COURT REPORTS [2017] l S.C.R.

A 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
B
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, is to ask whether appeals in the name of
c 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, comm unity 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
D
as it stood before the amendment did not permit au appeal iu the
name of religion, race, caste community or language, uo 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
E practice by making even a 'single such appeal' a corrupt practice
which was not so under the unamended provision. Seen both
textually and contextually the argument that the term "llis religion"
appearing in the amended provision must be interpreted so as to
confine the same to appeals in the name of "religion of the
F . candidate" concerned alone does npt stand closer scrutiny and
must be rejected. [Paras 8 and 9) [209-C-H; 210-A-C]
Z..1 Under the constitutional scheme mixing religion with
State power is not permissible w'hile 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
G the religions or religious denominations. This necessarily implies
that religion will not play any role in the governance of the c·ountry
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
H of the elected representatives must be secular in both outlook
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 165
ORS.

and practice. The Constitutional ethos forbids mixing of religions A
or religious considerations with the secular functions of the State.
This necessarily implies that interpretation of any statute must
nut 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
B
from religious considerations, therefore, must be avoided. While
interpr,eting an enactment, the Courts should remain cognizant
of the Constitutional goals and the purpose of the Act and interpret
the provisions accordingly. [Para 23] [215-D-G]
2.2 While interpreting a legislative provision, the Courts
must remain alive to the constitutional provisions and ethos and c
that interpretations that are in tune with such provisions and
ethos ought to be preferred over others. Applying that principle
to the present case, 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 D
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 State is under an obligation to allow E
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 F
interference of religions and religious beliefs with secular activity
of elections to legislative bodies. [Para 28) [217-C-G]
Saifi1ddin Saheb 1' Slate of Bombay AIR 1962 SC 853:
[1962] Suppl. SCR 496; Ahmedabad St. Xavier s
College Society and Anr. v. State of Gujarat and Am'. G
[1975] 1 SCR 173: (1974) 1 SCC 717; flldira Nehru
Gandhi v. Shri Raj Narain [1976] SCR 347 : (1975)'
Suppl. SCC 1; S.R. Bommai v. Union of India [1994) 2
SCR 644 : 1994 (3) SCC l; M.P. Gopa/akrislman Nair
and Anr. 1' State of Kera/a and Ors. [2005] 3 SCR 712:
(2005) 11 SCC 45; Dr. Vimal (Mrs.) v. Bhagzlji & Ors. H
166 SUPREME COURT REPORTS [2017] I S.C.R.

A [1995] 1 Suppl. SCR 392: (1996) 9 SCC 351; Ambika
Sharan Singh v. 1"1aha11t Mahadeva and Giri and
Others (1969) 3 SCC 492; Kedar Nath v. State <if Bihar
(AIR 1962 SC 955) : [1962] Suppl. SCR 769; S1ate of
Karnataka v. Appa Ba/11 lngale and Others [1992] 3
Suppl. SCR 284 : (1995) Supp.4 SCC 469; Vipu/bhai
B
M Chaudhary v. Gtifarat Cooperative Milk Marketing
Federation Ltd. and Ors. [2015] 3 SCR 997 : (2015) 8
sec 1 - relied on.
3. An appeal in the name of religion, race, caste, community
or language is impermissible under the Representation of the
c 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
D amendment is that an appeal in the name of religion, race, caste,
community or language is forbidden even when the appeal may
not be in the name of the religion, race, caste, community or
language of the candidate for whom it has been made. So
interpreted religion, rnce, caste, community or language would
not be allowed to play 1rny role in the electoral process and should
E an appeal be made on any of those considerations, the same would
constitute a corrupt practice. [Para 29] [217-G-H; 218-A-B]
Per S. A. Bobde, J. (Concurring):
1. The bar under Section 123(3) of the Representation of
F People Act, 1951 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. The purposive interpretation in
the social context adjudication as a facet of purposive
interpretation warrants a broad interpretation of that section. That
the section is intended to serve the broad purpose of checking
G 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. [Para 1] [218-C-Ej
H 2. Such a construction is not only warranted upon the
ABH!RAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 167
ORS.

application of the purposive test of interpretation but also on A
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. There seems no valid reason
while construing a statute (be it a taxing or penal statute) why
both rules of interpretation cannot be applied. [Para 2] [218-E-
B
H; 219-A]
!RC v. Trustees of Sir John Aird's Settlement 1984 CH
382 : (1983) 3 All ER 481 (CA) - referred to.
3. Section 123 (3) prohibits an "appeal by a candidate", etc.
"to vote or refrain from voting for any person on the ground of c
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 D
all the actors involved i.e. the candidate, his election agent etc.
and the voter. Thus, the pronoun in the singular "his" refers to
a candidate or his agent or any other person with the consent of
a candidate or his election agent and to the voter. In other words,
what is prohibited is an appeal by a candidate etc. to a voter for E
voting on the ground of his religion i.e. those categories preceding
"his". This construction. is fortified by the purposive test. [Para
3) [219-D-F)
4. While interpreting statutes, wherever the language is
clear, the intention of the legislature must be gathered from the F
langnage used and support from extraneous sources should be
avoided. 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 electio11 agent etc. Also
because the i·ntendment and the purpose of the statute is to
prevent an appeal to votes on the ground of religion. It is an G
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 bis religion and only refers
H
168 SUPREME COURT REPORTS [2017] 1 S.C.R.

A to religion of the voter. This interpretation 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
interp~etation proscribes a reference to either. [Para 4) [219-G-
H; 220-A-DJ
B
Grasim Industries v. Collector of Customs, Bombay
[2002) 2 SCR 945 : 2002 (4) SCC 297 ~ relied on.
5. It is an overriding duty of the Court while interpreting
the provision of a statute that the intention of the legislature is
c not frustrated and any doubt or ambiguity must be resolved by
recourse to the rules of purposive construction. 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. Parliamentary intent therefore, was to clearly
proscribe appeals based on sectarian, linguistic or caste.
D considerations; to infuse a modicum of oneness, transcending
such barriers and to borrow Tagore's phrase transcend the
fragmented "narrow domestic walls" and send out the message
that regardless of these distinctions voters were free to choose
the candidate best suited to represent them. Applying the above
E 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. [Paras 5, 7 and 8) [221-C-E; 222-B-C,
F G-H]
Bairam Kumawat v. Union of India [2003) 3 Suppl.
SCR 24 : 2003 (7) SCC 628 - relied on.
Craies on Statute Law 7th Edu. Page 531 - referred
to.
G MINORITY VIEW:
Pe'r Dr. D. Y. Chandrachud, J. (for himself and for Adarsh
Kumar Goel and Uday Umesh Lalit, JJ.) :
1. Election petitions alleging corrupt practices have a
quasi-criminal character. Where a statutory provision implicates
H penal consequences or consequences of a quasi-criminal
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 169
ORS.

character, a strict construction of the words nsed by the legislature A
mnst be adopted. The standard of proof is hence mnch 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 crimiual trial. While a strict construction of a
quasi-criminal provision in the nature of an electoral practice is
B
mandated, the legislative history also supports that view. [Paras
11, 12 and 44) [227-F; 228-D-E; 256-C]
Tolaram Relumal v. State of Bombay (1951) 1 SCR
158 - followed.
Amolakchand Chhazed v. Bhagwandas (1977) 3 sec
566; Baldev Singh Mann v. Gurcharan Singh (MLA) c
[1996) 2 SCR 99 : (1996) 2 SCC 743; Thampanoor
Ravi v. Charupara Ravi (1999) 2 Suppl. SCR 419 :
(1999) 8 SCC 74; Bipinchandrq Parshouamdas Patel
. (Vakil) v. State of Gujarat (2003) 3 SCR 533 : (2003) 4
SCC 642; S Subra111a11ia111 Balaji v. State of Tamil Nadu D
(2013) 9 sec 659 - relied on.
2.1 Essentially, Section 123(3) can be understood by dividing
its provisions into three parts. The firs.t 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
E
basis reflected in the second. The first part of the provision
postulates an appeal. The appeal could be : (i) by a candidate; or
(Ii) by the agent of a candidate; or (iii) by another person with the
consent of a candidate; or (iv) by another person with the consent
of the' election agent of the candidate. Where the person making
the appeal is not the candidate or his agent, consent of the F
candidate or his agent is mandated. The appel!l is to vote or
refrain from voting for any person .. The expression 'any person'
is evidently a reference to a camlidate contesting the election.
The third i>art speaks of the basis of tb,e appeal. The appeal is to
vote or refrain from voting for any person on the ground of
G
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 ca.ndidate. [Paras 13 and 14) (231-A-E) H
170 SUPREME COURT REPORTS [2017] I S.C.R.

A 2.2 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
B
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.
c Hence, in the first instance, there is an appeal by a candidate (or
his agent or by another person with the consent of the election
agent). The appeal is for soliciting votes in favour of the candidate
or to refrain from voting for a rival candidate. The expression
'his' means belonging to or associated with a person previously
mentioned. The expression "his" nsed in conjunction with
D
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)
E as referring to the religion, race, caste, community or language
of the voter. The provision, 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
F 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
G candidate in whose favour a vote is sought or that of another
candidate against whom there is an appeal to refrain from voting.
'His' religion (and the same principle would apply to 'his' race,
'his' caste, 'his' community, or 'his' language) must hence refer
to the religion of the person in whose favour votes are solicited
or the person against whom there is an appeal for refraining from
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 171
ORS.

casting a ballot. [Para 15] [231-F-H; 232-A-D] A
2.3 Section 123(3) nses the expression "on the ground
of his religion ... ". 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 R
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
c
candidate. 'The ground' means solely or exclusively on the basis
of the identified feature or circumstance. [Para 16] [232-E-G]
2.4 There is a clear rationale and· logic underlying the
provision u/s. 123(3). A person who contests an election for beiug
elected as a representative of the people either to Parliament or D
the State legislatures seeks to represent the entire constituency.
A person who is elected represents the whole of the constituency.
The Constitution of India has rejected and consciously did not
adopt separate electorates. Eveu where a constituency .is
reserved for a particular category, the elected candidate E
represent~ 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 lias mandated that the
religion of a candidate cannot be utilized to solicit votes at the F
election. Similarly, the religion of a rival candidate cannot form
the basis of an appeal to refrain from voting for that candidate.
(Para 17] [232-H; 233-A-C]
2.5 There is also rationale for Section 123(3) not to advert
to the religion, caste, community or language of the voter as a G
corrupt practice. The Constitution recognizes the broad
diversity of India and, as a political document, seeks to foster
a sense of inclnsion. 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 H
172 SUPREME COURT REPORTS (2017] l S.C.R.

A concept of one nationhood. Yet, the Constitution, in doing so,
recognizes the position of religion, caste, language and gender
in the social life of the nation. Individual histories both of citizens
and collective groups in the society are associated through the
ages with histories of discrimination and injustice on the basis of
these defining characteristics. In numerous provisions, the
B
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. There is no wall of separation
between the State on the one hand and religion, caste, language,
c race or community on the other. [Paras 18, 20) [233-D-F; 235-C)
2.6 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
D 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
E 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
F 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(l)(a) of the
Constitution. This fundamental right is subject to reasonable
restrictions as provided in the .Constitution. Section 123(3) was
not meant to and does not refer to the religion (or race,
G 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 Section123(3)
intended to sanitize the electoral process from the real histories
H of the people grounded in injustice, discrimination and suffering.
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 173
ORS.

The purity of electoral process is sought to be maintained by A
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. [Para 20] [235cE-H; 236-A-C]
B
2. 7 s. 123(3) does not prohibit discussipn, debate or
dialogue during the course of an election campaign on issues
pertaining to religion or on issues of caste, community, race or
language. Discussion of matters relating to religion, caste, race,
community or language which are of concern to the voters is not
an appeal on those grounds. Caste, race, religion and language c
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 llave suffered on the
basis of caste and race. Discussion about these matters - within
and outside the electoral context - is a constitutionally protected D
value and is an intrinsic part of the freedom of speech and
expression. [Para 21] [236-E-H; 237-A-B]
2.8 Thus, 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 E
interpretation that Section 123(3) must refer to the caste, religion,
race, com'!lunity 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
partil;ular theory based on purposive interpretation; when that F
principle of interpretation does not riecessarily 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. [Para 22] [237-D~F]
2.9 The traditional view of courts both in India and the UK G
was a rule of exclusion by which parliamentary history was not
readily utilized in interpreting a law. Over a period of time, the
narrow view favouring the exclusfon of legislative history has
given way to a broader perspective. · Debates in the Constituent
Assembly have been utilized as au aid to the interpretation of a H
174 SUPREME COURT REPORTS [2017] I S.C.R.

A constitutional provision. The modern trend is to permit the
utilization of parliamentary material, particularly a speech by the
Minister moving a Bill in construing the words of a statute. The
use of parliamentary debates as an aid to statutory interpretation
has been noticed in several decisions of this Court. There is need
for a balance between the traditional view supporting the
B
exclusion of the enacting history of a statute and the more realistic
contemporary doctrine allowing its use as an aid to statutory
interpretation. 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 legisfature, the mischief"
c 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. [Paras
31, 32, 33 and 35 ] [243-B-C; 244-D-G; 246-C-D]
Chiranjit Lal Chowdhuri v. Union of India AIR 1951 ·
D SC 41: [1950] SCR 869; Dr Ramesh Yeshwant Prabhoo
v. PK Kunte [1995] 6 Suppl. SCR 371 : 1995 (7) SCALE
1 - relied on.
Stale of Travancore Co. 1( Bombay Co. Ltd. AIR 1952
SC 366 : [1952] SCR 1112; State of West Bengal v.
Union of India (1964] 1 SCR 371; . Indra Sawhney v.
E
Union of India AIR 1993 SC 477 : (1992] 2 Suppl.
SCR 454; Novartis AG v. Union of India (2013) 6
SCC 1 : [2013] 13 SCR 148; State of Madhya Pradesh
1(Dadabhoy s New Chirimiri Ponri Hill Colliery Co. Pvt.
Ltd. (1972) 1 SCC 298 : [1972] 2 SCR 609; Union of
F India v. Legal Stock Holders Syndicate AIR 1976 SC
879 : [1976] 3 SCR 504; KP Vergese 1( Income Tax
Officer AIR 1981 SC 1922 : (1982] 1 SCR 629; Surana
Steels Pvt. Ltd. v. Dy Commissioner of Income Tax
[1999) 2 SCR 589 : (1999) 4 SCC 306 - referred to.
G 'Principles of Statutory l11terpretu!w11' by G.P. Singh
XIVth Edn.P-253; Bennion on Statut01y lnlerpretalion,
Indian Reprint Sixth Edition page 561 - referred to.
2.10 The legislative history of s. 123(3) indicates that
Parliament, while omitting the requirement of a "systematic"
appeal intended to widen the ambit of the provision. An 'appeal'
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 175
ORS.

is not hedged in by the restrictive requirements, evidentiary and A
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 con.straining
-B
the width of the provision even beyond its precamended 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 c
Section 123(3) only to cases where as the word systematic
indicates the conduct was planned and repetitive. Moreover, sub-
section 3A was not introduced earlier into Section 123. A new
corrupt practice of that nature was introduced in 1961. The
position can be looked at from more than one perspective. When
D
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 f23(3).
Parliament is entitled to perceive, in the best interest of
democratic political discourse and bearing in mind the E
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 o.r of a rival candidate.
For, 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
F
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 .G
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
H
176 SUPREME COURT REPORTS [2017] I S.C.R.

A that purpose. [Para 36] [246-D-H; 247-A-D]
Jagdev Singh Sidhanti v. Pratap Singh Dau/ta [1964]
6 SCR 750; Ku/tar Singh v. Mukhtiar Singh AIR 1965
SC 141 : [1964] SCR 790 - followed.
Kanti Prasad Jayshanker Yagnik v. Purshottam Das
B Ranchhoddas Patel [1969] 3 SCR 400 : (1969) 1 SCC
455 - relied on.
2.11 Secularism is a basic feature of the Constitution of
India. It postulates the equality amongst and equal respect for
religions in the polity. Parliament, when it legislates as a
c 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
D addition prohibited by sub-section 3A, which is also a corrupt
.practice. Legislation involved drawing balances between different,
and often conflicting values. Even when the values do not
conflict,the legislating body has to determine what weight should
be assigned to each value in its calculus. Parliament has made
E that determination and the duty of the court is to give effect to it.
The reference to 'his' religion in Section 123(3) has 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. A change in a legal
position which has held the field through judicial precedent over
F a length of time can be considered only in exceptional and
compelling circumstances. In the present case, 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 can.didate in whose favour an
G 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.
[Paras 42, 43, 46 and 50] (255-E-H; 257-B,C; 259-H; 260-A-B]
Supreme Court Advocates on Record Association v.
Union of India (2016) 5 SCC 1; Keshav Mills Company
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 177
ORS.

Ltd. v. Commissioner of Income Tax, Bombay North, A
Ahmedabad (1965] 2 SCR 908 - followed,
Ambika Sharan !>_ingh v. Mahant Mahadeva and Giri
(1969) 3 SCC 492; Ziyauddin Bukhari v. Brijmohan
Ramdas (1975] Suppl. SCR 281 : (1976) 2 SCC 17; Dr
Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath B
Kunte (1995] 6 Suppl. SCR 371 : (1996) 1 SCC 130;
Manohar Joshi v. Nitin Bhaurarf Patil (1995] 6 Suppl.
SCR 421 : (1996) 1 SCC 169; Harmohinder Singh
Pradhan v. Ranjit Singh Ta/wandi (2005] 3 SCR 952 :
(2005) 5 SCC 46; Mohd. Aslam v. Union of India (1996]
3 SCR 782 :(1996) 2 SCC 749 - relied on. C
SR Bommai v. Union of India (1994] 2 SCR 644 :
(1994) j sec 1 - referred to.
Case Law Reference
In the Judi:ment of Madan B. Lokur, J. D
(1996] 1 Suppl. SCR 340 referred to Para2
(2003) 9 sec 300 referred to Para2
[1964] 6 SCR 750 held not correct law Para6
(1964] 7 SCR 790 relied on Para 7
[1?691 3 SCR 400 held not correct law Paras E
[19961 3 §CR 782 referred to Para 10
[19941 2 SCR 644 referred to Para 10
[19951 6 Suppl.·SCR 371 held not correct law. Para 11
[1975] Suppl. SCR 281 ·referred to Para 35 F
[1985] 2 SCR 159 referred to Para35
[2003] UKHL 13 referred to Para 36
11?891 3 SCR 316 relied on Pare 43
(1975] 1 SCR 1 relied on Pare 44
[20131 10 SCR 259 relied on Pare 45 G
119551 1 SCR 608 referred to Page 47

In the Judl:!!!ent of T.S. Thakur, C.J.L
[1962] Suppl. SCR 496 relied on Para 13
H
178 SUPREME COURT REPORTS [2017] 1 S.C.R.

A J1975J 1 SCR 173 relied on Para 14
(1976] SCR 347 relied on Para 15
J1994J 2 SCR 644 relied on Para 16
J2005J 3 SCR 712 relied on Para 20
[1995] 1 Snppl. SCR 392 relied on Para 21
B
(1969) 3 sec 492 relied on Para 22
[1962] Suppl. SCR 769 relied on Para 24
11992] 3 Suppl. SCR 284 relied on Para 26
J2015] 3 SCR 997 relied on Para 27
c
In the Judgment of S.A. Bobde, J.
1984 CH 382 =
(1983) 3 All ER 481 (CA) referred ·to Para2
(2002] 2 SCR 945 relied on Paras
D
(2003] 3 Suppl. SCR 24 relied on Para 7

In the Judgment of Dr. D. Y. Chandrachud, J.
(1951] 1 SCR 158 followed Para 1
E (1977) 3 sec 566 relied on Para 11
(1996] 2 SCR 99 relied on Para 12
(1999] 2 Suppl. SCR 419 relied on Para 12
[2003] 3 SCR 533 relied on Para 12
(2013) 9 sec 659 relied on Para 12
.f [1952] SCR 1112 referred to Para 32
[1964] 1 SCR 371 referred to Para 32
(1950] SCR 869 relied on Para 32
[1992] 2 Suppl. SCR 454 referred lo Para 32
G (2013] f3 SCR 148 referred to Para 32
[1972] 2 SCR 609 referred to Para 32
(1976] 3 SCR 504 referred to Para 32
(1982] l SCR 629 referred lo Para 32
[1999] 2 SCR 589 referred to Para 32
H
AB HIRAM _l'INGH v. C.D. COMMACHEN (DEAD) BY LRS. & 179
ORS.

11995] 6 Suppl. SCR 371 relied on Para 34 A
11?64] 6 SCR 750 relied on Para 37
[1964] SCR 790 relied on Para 38
I1°?69] 3 SCR 400 relied on Para 38
~ (1'!69) 3 sec 492 relied on Para 39
B
[1975] Suppl. SCR 281 relied on Para 40
11995] 6 Suppl. SCR 371 relied on Para 41
11995] 6 Suppl. SCR 421 relied. on Para 41
12905] 3 SCR 952 relied on Para 41
[1994] 2 SCR 644 . referred to Para 43 c
11?96] 3 SCR 782 referred to Para 43
[1?65] 2 SCR 908 relied on Para 46
(2016) 5 .sec 1 followed Para 47
CIVIL APPELLATE JURISDICTION.: Civil Appeal No. 37 of
1992. D
From the Juagment and Order dated 24.12.1991 of the High Court
of Bombay in Election Petitjon No. I 1 of 199 I.
WITH
Civil Appeal No. 8339of1995. E
A.N.S. Nadkarni, Tushar Mehta, ASGs, Purushaindra Kaurav,
AAG, Arvind P. Datar, Anoop G. Choudhari, B.A. Desai, Kapil Sibal,
Salman Khurshid, Ms. Indira Jaising, C.S. Vaidyanathan, K.K. Venugopal,
M. N. Krishnamani, Sanjay R. Hegde, Soli J. Sorabjee, Shyam Divan,
Prof. Bhim Singh, Sr. Advs., Abhay Anand Jena, Ms. Bina Gupta, Ranj it F
B. Raut, Ms. Surbhi Kapoor, Sarthak Mehrotra, Mohit Sharma, Ms.
Sumeeta Chaudhari, Mrs. Shiraz Contractor Patodia Chirag M. Shroff,
ImtiazAhmed,Antony R. Julian, Ms .. Gitanjali Kapur, Aadil Singh Boparai,
Arpit Shukla, Koshy John, Nizam Pasha, Ms. Anusha Nagarajan, Adit
Pujari, Raghav Tankha, Ms. Neha Sangwan, Ms. Kumud Lata: Das,
Ravi Aggarwal, Mohd. Shahid Hussain, Ejaz Maqbool, Nishant R. G
.. Katneshwarkar, Salvador Santosh Rebello, Arp it Rai, Ms. Aparna Bhat,
Ms. Paya! Bahl, Ms. Rajshree Bhatnagar, Pukhrambam Ramesh Kumar,
MayankSapra, Ms. Mehek Dev, Rohit Ghosh, Ms. Josi ta Rai, Shuvodeep
Roy, Merusagar Samantary, Ms. Viddusshi, Pushpender Singh, Sayooj
Mohandas, Santosh Kumar, Pranav Kumar, Bharat Shood, \'ikramj it H
180 SUPREME COURT REPORTS [2017] l S.C.R.

A Banerji, Bhaskar Goutam, Bhaktivardan, Ms. Archana Pathak Dave,
Ms. Ankita Chaudhary, Santosh Kumar, Ms. Swarupaina Chaturvedi,
B.N. Dubey, Kumar Gaurav, R.K. Singh, Prakash Kumar Singh, Ms.
Aishwarya Bhatia, Ms. Hemantika Wahi, R.P. Goyal, P.V. Dinesh, Ms.
Sindhu T.P., Bineesh K., S. Nithin, Pranjal Kishore,Atul Vi nod Shankar,
R. Beniwal, Dr. Manish Singhvi, Atul Jha, Sandeep Jha, Dhannendra
B
Kumar Sinha, Mr. Udayaditya Banerjee,Adv. Mrs. Samiksha Godiyal,
Akshay Puranik, Vikramjit Banerjee, NachiketaJoshi, Ms. Sucheta Joshi,
Ritwiz Rishabh, Vadrevu Pattabhi Ram, Anuradha Mishra, Arjun Garg,
Rajat Nair, Manish Yadav, Ishan Nagar, C.D. ;,.1. 0h, Ms. Sylona
Mohapatra, Ajay Kumar Singh, Durg Vijay Singh, Bal want Singh, Ram
c Shiromani Yadav, Prakash Gautam, Sheenu Chauhan, Sujeet Kumar
Singh, Pankaj Pandey, Advs.for the appearing parties.
The following Judgments and Order of the Court were delivered:
MADAN B. LOKUR, J. l. The foundation for this reference
relating to the interpretation of Section 123(3) of the Representation of
D the People Act, 195 l to a Bench of seven judges has its origins in three
decisions of this Court.
· 2. In Abl1imm Singh v. CD. Commachen' the election in 1990
of Abhiram Singh to the No. 40, Santa Cruz Legislaiive Assembly
Constituency for the Maharashtra State Assembly was successfully
E 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, 195 l (for short,
F '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. Sunderlrlf Patwa' the election of
G
Sunderlal Patwa from the Bhojpur Constituency No. 245 in Madhya
Pradesh to the Legislative Assembly in 1993 was under challenge on the
ground ofa corrupt practice in that the returned candidate had allegedly
made a systematic appeal on the ground ofreligion in violation of Section

1
(1996)3 sec 665
H '(2003) 9 sec 300
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 181
ORS. [MADAN B. LOKUR, J.]

123(3) of the Act. The election petition was dismissed. In appeal before A
this Court, the Constitution Bench noticed an anomalous situation arising
out of an amendment to Section 123(3) of the Act in 1961 inasmuch as
it appeared that a corrupt practice for the purposes of the Act prior to
the amendment could cease to be a corrupt practice after the amendment.
On the one hand the deletion of certain words' from the sub-section
B
widened the scope of the sub-section while the addition of a word'
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 c
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. Co111111ache11'. Abhiram Singh
case has been disposed of as being infructuous. 6 The High Court D
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;eligion of the candidate. This construction
gains support from a three-Judge Bench decision of this Court in
Kanti Prasad Jayshanker Yagnik v. Purshottamdas E
Ranchhoddas Pate/7 as well as the subsequent decision of this
Court in Ramesh Yeshwant Prabhoo (Dr) v. Prabhakar
Kashinath Kunte'. 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 F
purposely used and, therefore, so long as the candidate's religi01t
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 Com1 in the case of Ku/tar
Singh v. Mukhtiar Singh' while noticing the provisions of Section
123(3) of the Act. There are certain observations in Bommai case 10, G
where this provision did not directly came up for consideration,
3
"systematic appeal" "(1996) 1 sec 130
9
""his" AIR 1965 SC 141 : (1964) 7 SCR 790
' (1996) 3 sec 665 10
S.R. Bommai v. Union of India,
6
T~is was an erroneous recording (1994) 3 SC C I
'(1969) I SCC455 1-1
-- ~'

182 SUPREME COURT REPORTS (2017] 1 S.C.R.

A 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'
B
appeal" in the pre-amended provision were given a go-by and
necessarily therefore the scope has bee_n 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
c 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,0fhis religion
D even though he appealed to the voters on the ground ofreligion of
voters. In view of certain observations made in the Constitution
Bench decision of this Court in Kuftar 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."
E
4. Thereafter, when Ahhiram Singh was taken up for consideration
by the Constitution Bench, an order was made" that •·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
F 123 of the 1951 Act to a larger Bench of seven Judges." It is under
these circumstances that these appeals are before us on a limited question
of the interpretation of sub-section (3) of Section 123 of the Act.
5. Before getting into the meat of the matter, it might be
worthwhile to appreciate the apparent cause of conflict in views.
G 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 Sidlumti v. Pmtap Singh
Daulta 13 • In this case, the Constitution Bench held that an appeal to the
"Abhiram Singh v. C.D. Commachen (Dead). (2014) 14 SCC 382
12 Narayan Singh V. Sunderlal Patwa. (2003) 9 sec 300

H " ( 1964) 6 SCR 750
ABHlRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 183
ORS. [MADA~ B. LOKUR, J.]

electorate on a ground personal to the candidate relating to his language A
attracts the prohibition of a corrupt practice under Section I 00 read· with
Section 123(3) of the Act. 1t was also held that espousing the cause of
conservation ofa language was not prohibited by Section 123(3) ofthe
Act. In that context, it was held:
"The corrupt practice defined by clause (3) of Section 123 is B
committed when an appeal is made either to vote or ~efrain 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 123(3). Therefore it is only when the
electo'rs are asked to vote or not to vote because of the c
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 D
practice."[Emphasis supplied by us).
7. In Ku/tar 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
E
unhealthy practices. It was said:
"The corrupt practice as prescribed by Section 123(3) undoubtedly
constitutes a very healthy and salutary provision which is intended
to serve the cause of secular democracy in this country. In
order that the democratic process should thrive and
succeed, it is of utmost importance that our elections to
Parliament and the different legislative bodies must be free
from· the unhealthy inOuence 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) G
'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]. H
184 SUPREME COURT REPORTS [2017] l S.C.R.

A 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
B
void the election of the candidate committing the corrupt practice.
However, it must be noted that K11/t11r Singh made no reference to the
decision in J11gdev Singh Sidlwnti.
8. A few years later, Section 123(3) of the Act again came up for
consideration - this time in K11nti Pras11d J11yslwnker Yll1:nlk. This
c 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 tliis passage (passage 3) Shambhu Maharaj had
D 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 io 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
E
election agentto 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 J11gdev Singh
F Sidlwnti or to broad interpretation given to the same provision in K11/t11r
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 Bomnwi but we need not refer to that decision since
G apart from the vievv expressed in the reference order, this Court had
taken the view in M.ohd. As/11m v. Union of lmlia" that " ...... the
decision of this Cou1rt in S.R. Bomm11i v, Union of l11di11, 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,
H "(1996) 2 sec 749
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 185
ORS. [MADAN B. LOKUR, J.]

1951 and, therefore, nothing in the decision in Bommai is of assistance A
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 Pre;imble to our Constitution is a part of the basic structure.of our
B
Constitution.
11. Finally, in Ramesh Yeshwant Prabfwo 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 c
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 thatthe word 'his' used in sub-section (3) D
.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 E
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 F
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 el.ection 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 G
voting for any person on the ground of'his' religion for prejudicially
affecting the election of any candidate, that appeal is based qn
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
H
186 SUPREME COURT REPORTS [201 7] 1 S.C.R.

A on the gro'und 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
B
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 Prablioo the decision in Ku/tar Singh
was distinguis])ed, inter alia, on the ground that the text of sub-section
c (3) of Section 123 of the Act under consideration was prior to its
amendment in 1961. It is not at all clear how this conclusion was arrived
at since the paraphrasing of the language of the provision in Ku/tar
Singh suggests that the text under consideration was post-196 I. Further,
;i search in the archives of this Court reveals that the election petition
p out of which the decision arose was the General Election of 1962 in
which Kultar Singh had contested the elections forthe Punjab Legislative
Assembly from Oharamkot constituency No. 85. Quite clearly, the law
applicable was Section 123(3) of the Act after the amendment of the
Act in 1961.

E 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
Sidl1anti but in a broad manner in Ku/tar Singh without reference to
Jagdev Singh Sidlwnti. A narrow and restricted interpretation was
.given to Section 123(3) of the Act in Kan ti Prasad Jayshanker Yagnik
without refers:nce to Jagdev Singh Sidhallli or Ku/tar Singh. Ran.1esh
F Yeshwant Prablioo decided about four decades later gave a narrow
and restricted meaning to the provision by an apparent misreading of
Section 123(3) of the Act. Hence the apparent conflict pointed out in
Narayan Singh. In any event today (and under the circumstance
mentioned above) this provision falls for our consideration and
G 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
H 124 dealt with minor corrupt practices. Chapter II dealt with illegal
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 187
ORS. [MADAN B. LOKUR, J.]

prac'tices for the purposes of the Act. As far as we are concerned, A
Sectio!) 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 B
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. C
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. ln 1956 the Act was amended by Act No. 27 and the distinction
between major corrupt practices and minor corrupt practices was D
removed. Therefore, for Chapters I and II of Part VII of the Act only
Chapter I providing for corrupt practices was substituted. Section 123(3)
of the Act (as amended in 1956) reads as follows:.
(3) The systematic appeal by a candidate or his agent or by any
other person to vote or refrain from voting on grounds of caste, E
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
F
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 thaC'any other person' could be iperson not
.authorized by the candidate to make a 'systematic appeal; for or on his
pr her behalfor make the 'systematic appeal' without the consent of the
candidate. For this and other reasons as well, it became necessary to G
further amend the Act.
18. Accordingly, by an amendment carried out in 1958, the Act
was again amended ang 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 H
188 SUPREME COURT REPORTS [2017] 1 S.C.R.

A 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
B or the use of, or appeal to, national symbols, such as the national
flag or the national emblem, for the furtherance of the prospects
of that candidate's election.
19. Progressively therefore Section 123(3) of the Act and the
corrupt practice that it recognized became candidate-centric in that a
'systematic appeal' would.have to be made (to an elector) by a candidate,
c
his agent or any other person with the candidate's consent or the consent
of the ca:ididate's election agent 'to vote or refrai11Jrom voting' on certain
specified grounds 'for the furtherance of the prospects ofa.candidate's
election'.
20. Apparently to mal<e the corrupt practice more broad,based,
D
the Act was sought to be amended in 1961. A Bill to this effect was
introduced in the Lok Sabha on JO"' August, 1961. The Notes on Clauses
accompanying the Bill (the relevant clause being Clause 25) stated as
follows:
C'auses 25, 26, 29 and 30. - For curbing communal and separatist
E 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 cl.ause (26) forthe promotion of feelings
F 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.
G
21. Three objectives ofthe Bill stand out from the Notes on Clauses
and they indicate that the amendment was necessary to: (!)_Curb
communal and separatist tendencies in the country; (2) Widen the scope
of the corrupt practice mentioned in sub-section (3) of Section 123 of
the Act; (3) Provide for a new corrupt practice (as in sub-clause (b) of
H clause 25). The proposed amendment reads as follows:
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 1S9
ORS. [MADAN B. LOKUR, J.]

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
(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 differ~nt classes of the citizens of India on
grounds of religion, race, caste, community, or language, by a c
candidate or his agent or any other person with the consent of a
candidate or his election agent forthe furtherance of the prospects
of that candidate's election.".
22. The Bill was referred to the Select Committee on 14" August,
1961 which was required to submit its Report by 19'" August, 1961. The D
Select Committee held four meetings and adopted a Report on the
scherluled date. It was observed in the Report that the proposed
amendment to Section 123(3) of the Act "does not clearly bring out its
inten:lon." Accordingly, the Select Committee re-drafted this provision
to read as follows:
E
(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 r~ligion,
race, caste, community or language or the use of, or appeal to,
religious symbols or the use of, or appeal to, national symbols,
F
such as the national flag or the national emblem, for the fu1therance
of the prospects of tire election ofthat candidate or for prejudicially
affecting the election of any candidate.
Similarly, an amendment was proposed in the new clause (3A) of Section
123.0fthe Act and this reads as follows: ,__,
G
(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
H
190 SUPREME COURT REPORTS [2017) l S.C.R.

A of the election of that candidate or for prejudicially affecting the
eli'.ction of any candidate.
23. Minutes of Dissent were recorded by two Hon'ble Members
of Parliament in ·the Report of the SeJect Committee. Ms. Renu ·
Chakravartty made some observations .with regard to the proposed
B 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 communal ism
seems to me not to be seriously meant. I suggest an amendment
to clause 23 to the effect that places of religious worship or
c 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 Ill, I had proposed to make these as electoral offences
and anyone indulging in them punishable.· 1 am surprised to see
that even these amendments or part of it could not be passed
D 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
E 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."
F
Ms. Renu Chakravartty felt that the object of the Bill was to curb
communalism but the Bill had not gone far enough in that direction.
24. Shri Bal raj Madhok also dissented. His dissent was, however,
limited to the deletion of the word "systematic" in clause (3) of Section
G 123 of the Act. He also did not dissent on the issue ofcurbing 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 I 23 of the 1951 Act.
By omitting these words any stray remarks of any speaker might
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 191
ORS. [MADAN B. LOKUR, J.]

be taken advantage of by the opponents for the purpose of an A
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: B
"(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, com1nunity or language or the use of, or appeal to,
religious symbols or the use of, or appeal to, nationaksymbols, c
. such as the national flag or the national emblem, for the furtherance
· of the prospects oft!ie election ofthat 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 D
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 forthe fortherance of the prospects
of that candidate or for prejudicially affecting the election ofany
candidate."
E
26. Significantly, the word"systematic" was deleted despite the
dissent of Shri Balraj Madhok. The.effect of this is that even a single
appel)I by a candidate or his agent or by any other person with the consent
ofa candidate or his election agent to vote or refrain from voting for any
perscn on the ground ofhls religion, race, caste, community or language
· for the furtherance of the prospects of the election of that candidate or F
for p1 ejudicially affecting the election ofany candidate would be de.emed
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 G
sweep was apparently restricted by inserting the word "his" before
religion. ·
28. Interestingly, siinultaneous with the intr-oduction of the Bill to
amend the Act, a Bill to amend.Section 153A of the Indian Penal Code
(the !PC) was moved by Shri Lal Bahadur Shastri. The Statement of H
192 SUPREME COURT REPORTS [2017] I S.C.R.

A Objects and Reasons for introducing the amendment notes that it was,
inter a/ia, 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:
B STA"!EMENT OF OBJECTS AND REASONS
Jn 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
I 53A of the Indian Penal Code so as to make ita specific offence
c 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 a11 offence
for a11y one to do any act which is prejudicial to the maintenance
of harmony between different religious, racial or language groups
or castes or communities and which is likely to disturb public
D tranquillity. Section 295Aofthe 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
E The 5th August, 1961.
29. The Bill to amend the IPC was passed by Parliament and Section
l 53A of the IPC was substituted by the following:
"'153A. Whoever-

F (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
con11nunities, or
G (b) commits any act which is prejudicial to the maintenance of
harmony between different religious, racial or language groups or
castes or communities and whjch disturbs or is likely to disturb
the public tranquillity,
shall be punished with imprisonment which may extend to three
H years, or with tine, or with both."
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 193
ORS. [MADAN B. LOKUR, J.]

Pilotine; the Bill A
30. While piloting the Bill relating to the amendmentto sub-section
(3) of Section 123 of the Act the Law Minister Shri A.K. Sen adverted
to the amendment to the !PC 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 B
limited purpose:
"Now, I come to the main question with regard to clauses 23 and
24, that is, the new provision in clause 23 seeking to prohibit the
appeal to communal or linguistic sentiments, and also clause 24
which penalizes the creation of enmity between different classes.
Those hon. Members who feel that we should have kept the word c
'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 D
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 E
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 F
the problem, and we should show our disfavor openly and
publicly even of stray cases of attemP,ts 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 G
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 H
194 SUPREME COURT REPORTS [20 I 7] I S.C.R.

A 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
B
eradicating or at least in checking the evil which has raised
its ngly head in so many forms all over the conn try in recent
Y"ars." [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
c communal, separatist and fissiparous tendencies that seemed to be on
the rise in the country. An amendment to the !PC 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 com1r.unal, fissiparous and separatist tendencies an electoral offence
D leading to voiding an election and a possible disqualification of the
candidate from contesting an election or voting in an election for a period.
An aggravated form of any such tendency could invite action under the
criminal law of the land.
32. Although we are concerned with Section 123(3) of the Act
as enacted in 1961 15 and in view of the limited reference made, to the
E 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 I 53A of the IPC.
Submissions and discussion
F 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 Sh yam
Divan, Senior Advocate. Some learned counsels supplemented him while
G others opposed his· narrow interpretation of the provision under
consideration.
34. Basically, four principal submissions were made by learned
counsel for the appellants: Firstly, that sub-section (3) of Section 123 of
the Act must be given a literal interpretation. It was submitted that the
H " There has been no subslantial change in the language of the statute since then.
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 195
ORS. [MADAN B. LOKUR, J.]

bar to making an appeal on the ground ofreligion 16 must be confined to A
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
B
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 ofa corrupt practice the election might be declared void"
and t11at candidate might also suffer disqualification for a period of six c
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
16
The subniission would equally apply to an appeal on tile ground of caste, race, community
or language.
17
100. GroundS- for declaring election to be void. - (I) Subject to the provisions of
sub-section (2) if the High Court is of opinion • ,
(a) Xxx xxx xxx
D
{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 ur his election
agent; or
(c) xxx xxx xxx
(d) xxx xxx xxx
the High Court shall declare the election of the returned candidate to be void.
18
8-A. Disqualification on ground of corrupt practices.-{ I) The case of every person E
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
detennination 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 lhe order made in relation
to him under Section 99 takes effect. F
tt~A. Disqualification arising out of" conviction and corrupt practices. - (I) If any
person. after the com1nenccment of this Act. is convicted of an offence punishable under
Section 171E or Section 171F of the Indian Penal Code (4; 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 dale 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 G
SA 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 (I) or Section i IA of this
Act as it stood immediately before the commencen1ent of the Election Laws (An1cndmcnt)
Act, 1975 (40 of 1975). as if such decision were a decision in respect of the said
disqualification for voting also. H
196 SUPREME COURT REPORTS [20 I 7] I S.C.R.

A 123 of the Act must be eschewed and it should be given a restricted
interp~etation. 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( I )(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
B
mean unsettling the law accepted over several decades and we should
not charter our course in that direction unless there was strong reason to
do so, and that there was no such strong reason forthcoming.
35. At the outset, we may mention that while considering the
mischief sought to be suppressed by sub-sections (2), (3) and (3A) of
c Section 123 of the Act, this Court observed in Ziyauddi11 Burhn1111ddin
Bukhari v. Brijmolrn11 Ranulass Mehra" 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
D 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
E 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 ofreligion, race, caste,
community, culture, creed and language. Our political history
made it particularly necessary that these differences, which
F c&n 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-
G 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 Constitutiou,and, indeed, ofany civilised political and social
order. Due respect for the religious beliefs and practices, race,
19
H (1976) 2 SCC 17 decided by a Bench of three learned judges.
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 197
ORS. (MADAN B. LOKUR, J.]

creed, culture and language of other citizens is one of the basic A
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
B
what is permissible and what is prohibited, after taking into
account the facts and circumstances of each case interpreted
in the context in which the statements or acts complained
. of were made." [Emphasis supplied by us].
The above expression of views was cited with approval in S.
Hareltaran Sin{:h v. S. Sajja11 Sin1:h .'° c
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 cat\ be settled only ifthe draftsman gives a long-winded explanation in
drafting the law but this would result in an awkward draft that might D
well turn out to be unintelligible. The interpreter has, therefore, to consider
not only the text of the law b~t 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. I'.
Secretary ofStllte fat Health ex parte Qui11tm•lllle" when it was
E
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 pa1ticular provisions which
give rise to difficulty. Such an approach not only encourages F
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 G
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 chailge, or address
some problem, or remove some blein ish, or effect some
20
( 1985) I SCC 370 decided by a Bench of three learned judges

" [2003] UKHL 13 H
198 SUPREME COURT REPORTS [2017] l S.C.R.

0
A improvement in the national life. The cou1t s task, within the
pennissible bounds of interpretation, is to give effect to Par! iament'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.
B
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
c 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
D frequently' had to grapple with the question whether a modem
invention or activity falls within old statutory language: see
Bennion, S1atu1ory lnterpretalion, 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
E 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."
3'1. In the same decision, Lord Steyn suggested that the pendulum
F 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
G
Embryology Act 1990] in particular, is amply justified on wider
grounds. In Cabell v Markha111" Justice Learned Hand explained
the merits of purposive interpretation, at p 739:
"Of course it is true that the words used, evc11 in their literal
H "(1945) 148 F 2d 737
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 199
ORS. [MADAN B. LOKUR, J.]

sense, are the primary, and ordinarily the most reliable. source A
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
B
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: c
see, however, a classic early statement of the purposive approach
by Lord Blackburn in River Wear Commissioners v Adamson".
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 D
and tax statutes may have to be approached somqwhat difforently."
[Emphasis supplied by us].
To put it in the words of Lord Millett: "We are all purposive
constructionists now.""
In Bennion on Statutory Interpretation'; it is said that:
E
"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." In
fact the recognition goes considerable further back than :hat. The F
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
s
resolution in Heydon Case." Legislation is still about remedying G
23
(1877) 2 App Cas 743. 763
" 'Construing Statutes', ( l 999) 2 Statute Law Review I 07, p. l 08 quoted in •Principles
ofSta:utory Interpretation' by Justice GP. Singh 14'• Edition revised by Justice A.K.
Patnaik at page 34
25
Sixth Edition (Indian Reprint) page 847
26
Stock\'. Frank Jones (Tipton) Ltd., [1978] I WLR 231 at 234
27
(I ;34) 3 Co ~ep 7a H
200 SUPREME COURT REPORTS (2017] I S.C.R.

A 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 ifthe existing Jaw accommodated the notion there would be
no need to change it. No legal need that is .... " [Emphasis
SUJ!plie~ by usl.
B
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,
c a pragmatic view is required to be taken and the Jaw 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 ofliteral interpretation would still hold good.
D 39. The Representation of the People Act, 1951 is a statute that
enables •1s 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
E bottom ofall 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 ... " ifthe electoral Jaw needs to be understood, interpreted and
implem~nted 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.
F
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
appellar.ts referred to the debates on the subject in Parliament extracted
in Ramesh Yesllwant Prablwo. It is not necessary to delve into the
debates in view of the clear expression of opinion that the purpose of the
G 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.
4 i. 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
H
ABHIRAM SJNGH v. C.D. COMMACHEN (DEAD) BY LRS. & 201
ORS. [MADAN B. LOKUR, J.]

years of its enactment indicates the seriousness with which Parliament A
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 lPC). lt 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
B
languagethat might be used so that the democratic process is not derailed
but strengthened. Taking all this into consideration, Parliament felt the
need to· place a strong check on corrupt practices based on an appeal on
grounds ofreligion during election camf)aigns (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 c
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 D
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
E
of social context adjudication. This has been the subject matter of
consideration and. encouragement by the Constitution Bench of this Court
in Union oflmli<lv. Ragl111birSi11glt (Dead) by Lrs." In that decision,
this Court noted with approval the view propounded by Justice Holmes;
Julius S.tone-and Dean Roscoe Pound to the effect that law must not
remain static but move ahead with the times keeping in mind the social F
context. It was said:
"But like all principles evolved by man for the regulation of the
social order, the doctrine of binding precedent is circumscribed in
.its governance by perceptible limitations, limitations arising by
reference to the need for readjustment in a changing society, G
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"," and again
'" <1989) 2 -sec 754
29 Oliver Wendell Holmes: The Common Law page 5 H
202 SUPREME COURT REPORTS [20 I 7] I S.C.R.

A when he declared in another study'° that "the law is forever
adopting new principles from life at one end", and "sloughing off"
old ones at the other. Explai'ning 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
B
choice between competing legal propositions, rather than
by the operation oflogic upon existing legal propositions, that the
growth of law tends to be determined."" [Emphasis supplied by
us].
A little later in the decision it was said:
c
"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
D 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 s-Omething
fixed and settled, whose authority was beyond question, while at
E the same time enabling it to make constant readjustments and
occasional radical changes under the pressure of infinite and
variable human desires"." The reconciliation suggested by Lord
Reid in The Judge as Lm1• Maker" 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].
F
44. Similarly, in Maga11/al C/z/1aga11/al (P) Ltd. v. Municipal
Corporation of Greater Bombay" 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
G
3t!Oliver Wendell 1-fohnes: Con1n1on Carriers and the Co111n1on La11·. ( 1943) 9 Curr
LT 387, 388
31
Julius Stone·: Legal Systen1s & La11yers Reasoning. pp. 58·59
32 Roscoe Pound : An !11trod11ctio11 to the Philosophy of Lau·. p. 19

" Pp 25-26
H "(1974)2SCC402
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 203
ORS. [MADAN B. LOKUR, J.]

developments in different fields of life. Law, if it has to satisfy A
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
B
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 oite can retard it only at the risk of
alienating law from life itself......... " [Emphasis supplied by
us].
45. Finally, in B"dsh"h v. Urmif{I B{l(/slwft Godse" this Court
c
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 D
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. E
Indeed, when social reality changes, the law must change too.
Just as change in social reality is the law oflife, responsiveness
to change in social reality is the life of the law. It can be said
that the history of!aw is the history of adapting the law to society's
changing needs. In both constitutional and statutory interpretation,
the court is §Upposed to exercise discretion in determining the F
proper relationship between the subjective and objective purposes
of the law." [Emphasis supplied by us].
46. There is no doubt in our mind that keeping in view the social context
in which sub-section (3) of Section 123 of the Act was enacted an·d
today's social and technologlcaf context, it is absolutely necessary to G
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
"(2014) 1 sec 188 H
204 SUPREME COURT REPORTS [2017] I S.C.R.

A the scope of Section 123(3) of the Act in J(lgt/ev Singh Sidflllllfi, K(lnti
Prttsml .ff1ysflllnker Yagnik and· R(lmesh Yeshwtmt Prttbfwo 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 J(lgt/ev Singh Sidlumti. That
B
issue does not arise for our consideration.
Constitutional validity of Section 123(3) of the Act
4 7. Although it was submitted that a broad interpretation given to
sub-section (3) of Section 123 of the Act might make it unconstitutional,
c 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 J(lmun(I
Prtts(lt/ Mukflllriy(I v. £(1cl1hi R(lm 36 when the sweep of the corrupt
practice on the ground of religion was rather broad. It was held:

D "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 oflaws
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
E from speaking. They merely prescribe conditions which must be
observed if he wants to enter Par Iiament. 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
F 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.'~
G 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)
H "' ( 1955) I SCR 608
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 205
ORS.

of the Act. As we have indicated earlier, there was some uncertainty A
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 se.ttled.
P.iat being the position, there is really nothing that survives 'in this
submission.
Conclusion w----'
49. On a consideration of the entire material pl~ced before us by
learned counsels, we record our conclusions as follows:
I. 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 co.ntext of simultaneous and c
contemporaneous amendments inserting sub-section (3A) in
Section 123 of the Act and inserting Section l 53A 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 D
'
the Representation of the People Act, 1951 must be given a
broad and purposive interpretation thereby bringing within the
swee_p of a corrupt ,practice any appeal made io 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 E
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 tire 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. F
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.
G
50. · The reference is answered as above and the matter may be
_/ placed before Hon'ble the Chief Justice for necessary orders.
T. S. THAKUR, C.J.I. 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
H
206 SUPREME COURT REPORTS (20 I 7] I S.C.R.

A the views reflect in an abundant measure, the deep understanding and
scholarship of my noble brothers, each treading a path that is well
traversed and sanctified by judicial pronouncements, the view taken by
Lokur, J. appears to me to be more in tune with the purpose and intention
behind the enactment of Section 123(3) of the Representation of Peoples
Act, 1951. I would, therefore, concur with the conclusions drawn by
B
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
c and historically accurate. 1 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
(I) xxxxxx
D
(2) xxxxxx
(3) The systematic appeal by a candidt;Jte 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,.
E 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 candidates 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
F 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;
(ii) the appeal was systematic;
G
(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
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 207
ORS. [T. S. THAKUR, C.J.l.]

(iv) the appeal was for the furtherance of the prospects of A
the candidate~ election, by whom or whose behalf the appeal
"\Vas 1nade.

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 B
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 c
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. D
5. Then came the Bill for amendment of Section 123 of the Act
. introduced in the Lok Sabha on 1O'" August, 1961 which was aimed m
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 E
(a) to curb communal and separatist tendencies in the country (b) to
widen the scope of the co1rnpt practice mentioned in sub-section (3) of
Section 123 of the Act and (c)to provide for a new corrupt practice as
in sub-clause (b) of clause 25. The proposed amendment was in the
follo~ing words:
.) F
"25. In Section123 of the 1951 Act,
(a) in clause (3) -
(i) the word "systematic" shall be omitted,
.(ii) for the woi·ds "caste, race, community or religion", the
G
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 H
'\
208 SUPREME COURT REPORTS (2017] 1 S.C.R.

A 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. "-
B 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: ·
c
" (I)_ 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
D 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 lo,
national symbols, such as the national flag or the national
emblem, for the furtherance of the prospects of the election
E 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
F
with the consent of a candidate or his election agent for the
furtherance of the prospects of election of that candidate or
for prejudicially affecting the election of any candidate.
7. The single noteworthy change that-was by the above amendment
brought about in the law was the deletion of the word "systematic" as it
G
appeared in Section 123 (3) before the amendment of 1961. The purpose
underlying the proposed deletion obviously was to provide that an Jippeal
in the name ofreligion 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
H would in terms of the amended provision be sufficientto annul an election.
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 209
ORS. (T. S. THAKUR, C.J.l.)

The other notable change which the amendment brought about was the A
addition of the words ''or for prejudicially affecting the eleciian 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 B
parties before us. Thafthe 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 c
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. Jn my view
the unamended provision extracted earlier made any appeal in the name D
of religion, race, caste, community or language a corrupt practice
regardless of whose religion, race, caste, community or language was
involved for such an appeal. The only other requirement was that such
an appeal was inade in a systematic manner for the furtherance of the
prospects ofa candidate. Now, ifthat was the legal position before the E
amendment and ifthe 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 F
in the name ofreligion, 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 who.se 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 G
. of the amendment. Any such interpretation will artificially restrict the
scope ofCorrupt 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
H
210 SUPREME COURT REPORTS (2017] 1 S.C.R.

A 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 ofreligion, race, caste community or language, no matter whose
B
religion, race, community or language was invoked. The amendment did
not intend to relax or remove that restriction. On the contrary it intended
to widen the scope of the corrupt practice by making even a 'single such
appeal' _a corrupt practice which was not so unde1 ,;,e unamended
provision. Seen both textually and contextually the argument that the
c 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
D 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
E
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 ofour
polity.
11. That India is a secular state is no longer res integra. Secularism
F 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 referto the judicial pronouncements on the
subject we may gainfully refer to what Dr. Radhakrishnan the noted
G statesman/philosopher had to say about India being a secular State in
the following passage:
"When India is said to be a secular S!a/e, ii does not mean
that we rejec/ reality of an unseen spirit or the relevance of
religion 10 life or 1ha1 we exalt irreligion. It does 1101 mean
thal Secularism itself becomes a positive religion or Iha/ !he
H
-?:'1."7'
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 211
ORS. [T. S. THAKUR, C.J.L]

State assumes divine prerogatil'es. Though faith in the Supreme A
is the basic principle of the Indian tradition, the Indian State
will not identify itself with or be controlled by any particular
religion. We hold that no one religion should be given
pr4erential status, or unique distinction, that no one religion
should be accorded special privileges in national life or
B
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 comprehe11sio11 a11dforbeara11ce, has a
prophetic role to play within the national and international
life. No group of citizens shall arrogate to itself rights and c
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 anti State."
D
[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 E
a secular State means is that this parliament shall not be
competent to impose any p11rticul11r religion upon the rest of
the people"
13. In Saifudtlin S11'1eb v. State l!f Bombay AIR 1962 SC 853
a Constitution bench of this Court described secularism thus:- F
"50. These Articles embody the principle of religious toleration
that has been the characteristic feature of Indian civilization
fi·om 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
G
Indian democracy which the founding fathers considered
should be the very basis of the Constitution. "
14. Again in the Ahmetlab111l St. Xavier's College Socie(v 11ml
Anr. v. State of Gujarat amt Anr. (1974)1 SCC 717 a Nine-Judge
bench explained the secular character of the Indian Constitution and
said: H
212 SUPREME COURT REPORTS (2aI 7] 1 S.C.R.

A "75. ........ There is no mysticism in the secular character of
the State. Secularism is neither anti-God nor pro-God; it treats
alike the dev011t, the agnostic and. the atheist. It eliminates
Godfrom the niatters of the State and em{ures that no one
shall he discriminated."against on the ground of religion."'
B 15. So also in flldira Nehru Gllntflti v. Sltri Rllj Ntirain (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 frc<.,',.::1 of conscience
and the right freely to profess, practice and propagate
c religion. "
16. In S.R. Bomnwi v. Union ofInt/ill 1994 (3) SCC l, 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 SIA and declared that these provisions
prohibit the State from identifying with any particular religion, sect or
D
denomination. Drawing support from what jurists have said about the
concept of secularism in the Indian Constitution, the Court explained the
legal position thus:
"148.0ne thing which prominently emerges from the above
discussion on secularism under our Constitution is that
E
--- whatever the attitude .of the State towards the religions.
religious sects and denominations, religion cannot be m[xed
with any secular activity of the State. In Jae/, the encroachment
of religion into secular activities is strictzy prohibited. This is
evident from the provisio11s of the Constitution to which we
F have made r~ference above. The States 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
G
is only to the extent ofpermitting pursuit of spiritual life which
is different from the secular life. The latter falls in the e.~clusive
domain of the affairs of the State. This is also clear from Sub-
section /31 of Section 123 ofthe Representation 'ofthe Peoples
Act, 1951 which prohibits an appeal bv ll cant/it/ate or his
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 213
ORS .. [T. S. THAKUR, C.J.I.]

agent or hv any otlter person witlt tlte consent ofthe cmulidate A
or /tis election agent to vote or refrain from voting for anv
person on the ground o(his religion, race, caste, community
or lungullge or the use of or appeal to religious svmbols. Sub-
section {3Al of the s£1me section prohibits the promotion or
attempt to promote feelings of enmity and hatred between
B
different classes of the citizens of India 011 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 c
provisions of the said Sub-sections [3} and [JA} are deemed
to be corrupt practices within the meaning ofihe said section. "
(Emphasis supplied)
17. The Court declared that whatever be the States attitude
to\\{ards religious sects and denominations, a religious activity cannot be D
allowed to mix with the secular activities of the State. The Court held
that-encroachmenlofreligious 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 tiling which prominentlv emerges from tlte above E
discussion on secularism under our Constitution is th£1t
wlwtever the attitude of the State towards the religions,
religious sects and denominations, religion cannot be mixed
witlt anv secular activity ofthe State. In fact, the encroachment
of religion into secular activities is strictly prohibited. This is F
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
ofreligion on the one hand and the secular life of the State on the other G
and declared that the later falls in the exclusive domain of the State.
19. Speaking for himself and Agarwal J., Jeevan Reddy J., held
that the Constitution does not recognize or permit mixing religion and
State power and that the two must be kept apart. The Court said:
H
214 · SUPREME COURT REPORTS [2017] l S.C.R.

A "310 ... ....!f 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.
B
Introducing religion into politics is to inirod_uce an
impermissible element into body politic and an imbalance in
our constitutional system. !fa political party espousing a
particular religion comes to power, that religion tends to
become, in practice, the official religion. All other religions
c 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."
D
20. Relying upon the pronouncement of SR Bommai (supra) this
Court in M.P. Gopalakrishmm Nair and Anr. v. State of Kera/a 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
E of fundamentalism and communal ism 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. Blia::uji & Ors. (1996) 9 SCC- 351
this Court emphasized the need for interpreting Section 123(3) and
F I 23(3A) of the Representation of Peoples Act, 1951 to maintain national
integrity and unity amongst the citizens of the country and maintaining
the secular character of the society to which we belong. The Court
said:
"20. We may also indicate here that in order to maintain
G 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
H
harmony in the social fabric, it becomes essentially necessary
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 215
ORS. [T. S. THAKUR, CJ.I.]

not only to. indict the party to an election guilty of corrupt A
practice but to name the collaborators of such corrupt practice
if there be any".
22. Jn Ambika Slwmn Singli Vs. 1ffalumt Malwdeva and Giri
and Ot/iers (1969) 3 SCC 492, the Court held:
'"12. Indian leadership has long condemned electoral B
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 r~flected in Section 123 (3) of
the Act. Jmpite of the repeated condemnation, experience c
has showi1 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 basir '"
23. The upshot of the above discussion clearly is that under the
constitutional scheme mixing religion with State power is not permissible D
· 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 E
other body in the State is a secular exercise just as the functions of the
elected representatives must be secular in both outlook and practice ..
Suffice it to say that the Constitutional ethos forbids mixing ofreligions
or religious considerations with the secular functions of the State. This
necessarily implies that interpretation ofany statute must not offend the F
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 G
provisions accordingly.
24. In Kedar Natli Vs. State of Biliar (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 H
216 SUPREME COURT REPORTS [2017] l S.C.R.

A 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/aw construed ·
in one wtry would make them consistent with the Constitution,
and another interpretation would render them
B 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
c not do so.
26. To somewhat similar effect is the decision of this Court in
State of Karnataka Vs, Appa Balu Inga/e and Others (1995) Supp.4
SCC 469 where this Court held that as the vehicle of transforming the
nation's life; the Court should respond to the nation's need and interpret
D 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 ofthe purpose
of the Act while interpreting any legislation, the Court said:
"35. The judges, therefore, should respond to the human
E 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 nations life should respond to
the nation s needs and interpret the law with pragmatism to
further public welfare to make the constitutional animations
F a reality. Comnlon sense has always served in the courts
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
G 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 Da/its and the Tribes right to
equality; give social illlegratibn a fruition and make fraternity
a reality. "
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 217
ORS. [T. S. THAKUR, C.J.I.]

27. In Vipulblwi M. Chaudhary Vs. Gujarat Cooperative Milk A
Marketint: 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 con.stitutional requirements into
the enactment. The Court said:
"46. In the background of the ''Constitutional mandate, the B
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. " .
c
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 ofremoving the religion or religious considerations from .D
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 E
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 F
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 ofreligion, race, caste, community or G
language is impermissible under the Representation of the People Act,
_195 I 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 ofthe 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 H
218 SUPREME COURT REPORTS [20 J 7] I S.C.R.

A Section 123 (3) even after amendment is that an appeal in the name of
religion, race, caste, community cir 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
B
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.
S. A. BOBDE, J. 1. I agree with the conclusion drawn by my
learned brother Lokur, J. that the bar under Section 123 (3) of the
c Representation of People Act, 1951 (hereinafter referred to as "the Act")
to making an appeal on the ground ofreligion must not be confined to the
religion of the candidate because of the word 'his' in that provision. I
also agree that the purposive interpretation in the social context
adjudication as a facet of purposive interpretation warrants a broad
D interpretation of that section. That the section is intended to serve the
broad pcrpose 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.
E
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. Jn IRC v. Trustees of Sir John Aird's .
F Settlement [1984 CH 382 : (1983) 3 All ER 481 (CA)], the Court
observed as follows:
·· ... Two methods of statulory interpretation have al times been
adopted by the court. One, sometimes called literalist, is lo
make a meticulous examination of the precise words used.
G The other sometimes called purposive, is lo 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. "
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 2l9
ORS. [S. A. BOBDE, J.]

There seems no valid reason while construing a statute (be it a 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 B
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 c
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 provisio_n prohibits an "appeal by a candidate", etc. "to vote D
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 E
entire transaction of the app·eal to vote made to voters and must be held
referable to all the actors involved i.e. the candidate, his election agent
etc. and !he voter. Thus, the pronoun in the singular "his" refers to a
candidate or his agent or any other person with the consent of a candidate
or hi~ 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 F
_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 G
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 ofreligion. l consider it an unreasonable shrinkage
H
220 SUPREME COURT REPORTS (201 7] 1 S.C.R.

A to hold that only an appeal referring to the religion of the candidate who
madeJhe 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
B
candidate does not belong to a particular religion, or caste or does not
speak a language, thus emphasizing the distinction between the audience's
(intended voters) religion, caste or language, without referring to the
candidate on whose behalf the appeal is made, and who may conform to
the audience's religion, caste or speak their language, the provision is
c 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.
D 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
E 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
F 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
G provisions. Wherever the language is clear the intention of
the legislature is to be gathered from the language used. WIJile
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
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 221
ORS. [S. A. BOBDE, J.]

the Privy Council in Crawford v. Spooner "we cannot aid the A
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
B
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)" c
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. D
However, it has no application where the action is clearly within the ·
. mischief of the provision. Parliamentary intent therefore, was to clearly
proscribe appeals based on sectarian, linguistic or caste considerations;
to infuse a modicum of oneness, transcending such barriers and to borrow
Tagore's phrase transcend the fragmented "narrow domestic walls"
and .send out the message that regardless of these distinctions voters E
were free to choos'e 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, 7'"
Edn. at Page No.531 reads as follows:- F

" The distinction between a strict and a liberal construction
has almost disappeared with regard to all classes of statutes,
so that aJ!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 G
vs. Edwards : (1876) 2 Ch. D. 291, 297, Mellish L. J., quoted
with approval by Lord Cozens - Hardy MR. 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 H
222 SUPREME COURT REPORTS [20 l 7] l S.C.R.

A 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. "
B 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 Bairam Kumawat v. Union oflndia [2003
(7) SCC 628], this Court observed as follows:-

c "26. The courts will therefore reject that construction which
will defeat the plain intention of the legislature even though
there may be so111e 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,
D 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 momentu111,
should be very reluctant to hold that Parliament has
achieved nothing by the language it used when it is
E 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
F that the rule of strict construction of a regulatory/penal
statute 111ay not be adhered to, if thereby the plain intention
of Parlia111ent to combat crimes of special nature would be
defeated."
8. Applying the above principles, there is no doubt that Parliament
G intended an appeal for votes on the ground ofreligion 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.

H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 223
ORS.

Dr. D. Y. CHANDRACHUD, J. A. The reference I. This A
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
PP.op le 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,
B
the familiar from the unfamiliar and the certain from the uncertain. That
so much should turn upon the meaning which we assign to a single word
is reason enough to guard against an assumption that the issue which we
confront is a matter entirely of grammar or of statutory interpretation ..
Underlying the surface of this case, are profound questions about the
course of democracy in our country and the role ofreligion, race, caste, c
. 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
D
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 Patwa', a Constitution Bench of this
Court observed in its order dated 28 August 2002 that the High Court in E
· that case had construed Section 123(3) "to mean that it will not be a
corrupt practice when the voters belonging to some other religion are
appealed, other than the religion of the candidate." This construction
was supported by three Judge Bench decisions of this Court in Kanti
Prasad Yagnik v. Purshottamdas Patel' and Dr Ramesh Yashwant
Prabhoo v. Prabhakar Kashinath Knute'. There were observations F
of the Constitution Bench in Kultar Singh v. Mukhtar Singh' bearing
on the interpretation of Section 123(3). In the referring order in-Narayan ··
Singh (supra), this Court observed that in the nine Judge Bench decision
in SR Bommai v. Union of India;, there were certain observatious
which were contrary to the decisions of the three Judge Benches noted G
above. The order of reference was founded on the following reasons:
'(2003) 9 sec 300
'\1969) 1 sec 455
'(1996) 1sec130
'( 1964) 7 SCR 790
'(1994)3 sec 1 H
224 SUPREME COURT REPORTS [2017] I S.C.R.

A "'2 ... the very object of amendment in introducing Act 40 ofl 961
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
B "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
c 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 ofreligion of
D voters. In view of certain observations made in the Constitution
Bench decision of this Court in Kultar Singh Case we think it
appropriate to refer the matter to a larger Bench of seven Judges
to consider the matter."
3. The present civil appeal was initially referred by a Bench of
E three judges to a Constitution Bench on 16 April 1996'. When the civil
appeal came up before a Constitution Bench 7, 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 orderofreference dated 30 January 2014 explains the limited
F 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).
'(J996J J sec 665
'(20l4J 14 sec Jsi
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 225
ORS. [DR. D. Y. CHANDRACHUD, J.]

B. Representation of the People Act, 1951 A
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 d_efines corrupt practices for
the purposes of the Act. Since its amendment in 1961, Section 123(3)8 ,
to the extent that is relevant to the present case, provides as follows: B
"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, c
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: D
"l 23(3A). The promotion of, or attempt to promote, feelings of
enmity or hatred between different classes of the citizens oflndia
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 futtherance of the prospects · E
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
F
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)'declare the election of any or all of the

'Section 123(3) was substituted by amending Act 40 of 1961. w.e.f. 20.9.1961. G
9
Section 98 : Decision of the High Court-At the conclusion of the trial of an election
petition [the High Court] shall make an order-
(a) dismissing the election petition; or-
(b) declaring the election of[all or any of the returned candidates] to be void: or
(c) declaring the election of [all or any of the returned candidates] to be void and
the 'petitioner or any other candidate to have been duly elected.
H
226 SUPREME COURT REPORTS (2017) I S.C.R.

A . returned candidates to be void. One of the grounds on which an election
can be declared void in Section I 00( I)(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 ofa returned candidate or his election agent."
B 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 r. .....-~ of the corrupt
practice and the names of all persons who have been proved to have
c committed any corrupt practice. The consequence of a finding by the
High Court of the rnmmission ofa corrupt practice in Section 99, is a
disqualification under Section 8(A) for a period ofupto six years. Section
8(A) is in the following terms:
"8(A). Disqualification on ground of corrupt practices - (I) The
D case of every person found guilty of a corrupt practice by an
order under Section 99 shall be submitted, [as soon as may be
with in a period of three months from the date such order takes
effect], by such authority as the Central Government)nay 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
E 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
F Act as it stood immediately before the commencement of the
Election Laws (Amendment) Act, 1975 (40of1975), may, ifthe
period of such disqualification has not expired, submit a petition to
the President for the removal of such disqualification for the
unexpired portion of the said period;
G (3) Before giving his decision on any question mentioned in sub-
section (I) 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
H a decision of the President under sub-section (I) of Section 8(A) for any
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 227
ORS. [DR. D. Y. CHANDRACHUD, J.]

period shall.be disqualified forthe same period from voting at any election. A
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
jn an electoral roll. Moreover, if a person has been disqualified after B
registration in an electoral roll, the name ofthat 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(l)(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
c
in relatio_n to the state legislatures is contained in Artie le 191 ( 1)(e) of the
Constitution.
I 0. 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 D
for a period ofupto 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 aperson 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 ncit qualified to E
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 F
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 B~mbay'° where it was held as follows : G
" ...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
"(I95l)ISCRI58 H
228 SUPREME COURT REPORTS (2017] I S.C.R.

A that construction which exempts the subject from penalty rather
than the one which imposes penalty. It is not competent to the
Court to stretch the meaning of an expression used by the
·Legislature in order to carry out the intention of the Legislature.
As pointed out by Lord Macmillan in London and North Eastern
Railway Co. V. Berriman, "where penalties for infringement are
B
imposed it is not legitimate to stretch the language of a rule,
however beneticient 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
c interpretation has been adopted in Amolakchand Chhazed v.
Bhagwandas 11 • 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
D 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
E this Court in Baldev Singh Mann v. Gurcharan Singh (MLA)" in
the following observations:
"8. It is well-settled that an allegation of corrupt practice within
the meaning of sub-sections ( l) to (8) of Section l 23 of the Act,
made in the election petition are regarded quasi-criminal in nature
F requiring a strict proof of the same because the consequences
are not only very serious but also penal in nature. It may be pointed
out that on the proof of any of the corrupt practices as alleged in
the election petition it is not only the election of the returned
candidate which is declared void and set aside but besides the
G 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
11
<1977) 3 sec 566
H "<1996J 2 sec 743
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 229
ORS. [DR. D. Y. CHANDRACHUD, J.]

of corrupt practice and not to decide the case on preponderance A
or probabilities. The evidence has, therefore, to be judged having
regard to these well-settled principles." (Id at p.746)
Jn Thampanoor Ravi v. Charupara Ravi'', 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 : B
"19. The learned Judge noticed that ifa person is not to be held
an insolvent as in ordinary parlance it would result in non-
application of disqualification even ifthe 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 (I ){c) does not contemplate c
mere impecuniosity or incapacity ofa 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 D
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 ofa citizen
isccut down and in that event a narrow interpretation is E
required. Therefore, the liberal view taken by the learned
Judge to the contrary does not appear to be correct." (Id
at p.87)
Jn Bipinchandra Parshottamdas Patel (Vakil) v. State of Gu.iarat' 4,
a Bench ofthree Judges of th is Court restated the principle in the following F
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 b11e1pretatio11
G
and Application of Statutes Read Dickerson states:
"(I) The court will not extend the law beyond its meaning to take
care of a broader legislative purpose. Here' strict' means merely
"(1999) s sec 74
"c2003)4 sec 642 H
230 SUPREME COURT REPORTS [2017] I S.C.R.

A that the court will refrain from exercising its creative fanction
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;
B
(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
c 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, l? narrower than its express meaning, the court will _
D restrict application of the statute to its narrower purpose. This
differs from the Riggs situation in that the narrow purpose is
revealed by sources outside the statute and its proper context."
(Id at p. 653)
Construing the provisions of Section 123, a Bench of two Judges of this
E Court in S Subrarnaniarn Bala.ii v. State of Tamil Nadu 15 , 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 linke,d to his own
F 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
Aci. The provisions of the said Act place no fetter onthe power
G
of the politicalparties to make promises in the election manifesto."
(Id at p. 694)
This reflects the settled legal position.

H "(2013) 9 sec 659
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 231
ORS. [DR. D. Y. CHANDRACHUD, J.]

D. Construing Section 123(3) A
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: B
(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.
c
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
D
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 E
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 froin voling for any person. The positive element is F
erpliodied 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 · G
candidate has a detrimental. effect on the election prospects of a rival
candidate. Hence, in the first instance, there is an appeal by a candidate
(or his agent or by another person with the consent of the election agent).
The appeal is for soliciting votes in favour of the candidate or to refrain
from voting for a rival candidate. The expression 'his' means belonging
to or associated with a person previously mentioned. The expression H
232 SUPREME COURT REPORTS [2017] I S.C.R.

A "his" used in conjunction with religion, race, caste, community or language
is in reference to the religion, race, caste, community Of )anguage 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,
B
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
c 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
D
apply to 'his' race, 'his' caste, 'his' community, or 'his' language) must
hence refer to the religion of the person in whose favour votes are solicited
or the person against whom there is an appeal for refraining from casting
a ballot.
16. Section 123(3) uses the expression "on the ground of his
E
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'!!' or 'an'.
,----'
F 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.
G '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 tothe religion of the candidate or of a rival
candidate? There is a clear rationale and logic underlying the provision.
H
ABHIRkM SINGH v. CD. COMMACHEN (DEAD) BY LRS. & 233
ORS. [DR. D. Y. CHANDRACHUD, J.]

A person who contests an election for being elected as a representative A
of the people either to Parliament or the state legislatures_ seeks to
represent the entire constitueooy. 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
B
the constituency as a whole and not mer.ely persons who belong to the
class or category for whom the seat is reserved. A representative of the
people represents people at large and not a particular religion, caste or
community. Consequently, as a matter of legislative policy Parliament
has mandated that the religion of a candidate cannot be utilized to solicit
votes at the election 16 .Similarly, the religion of a rival candidate cannot c
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.
D
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 E
communities into the concept of one nationhood. Yet, the Constitution, in
doing so, recognizes the position ofreligion, 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 F
characteristics. In numerous provisions, the Constitution has sought to
preserve a delicate balance between individual liberty and the need to
remedy these histories ofinjustice founded upon immutable characteristics
such as ofreligion, 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 G
have been perpetrated against large segments of the population op
grounds of religion, race, caste and language. The Indian state has no
religion nor does the Constitution recognize any religion as a religion of

16
The same holds in the case of race; caste, community or language of a ~andidate. H
234 SUPREME COURT REPORTS [2017] I S.C.R.

A 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.
B 19. Article 15( I) contains a prohibitioi1 against discrimination by
the state against any citizen only on grounds ofreligion, race, caste, sex,
place of birth or any of them. Yet, Clause (4) makes it clear that tliis shall
not prevent the state from making special provisions for the advancement
of socially or educationally backward classes of the citizens or for the
scheduled castes and scheduled tribes. Article 16( I) guarantees equality
c of opportunity for all citizens in matters relating to public employment
while clause (2) contains a guarantee against discrimination only on the
grounds ofreligion, race, caste, sex, descent, place of birth, residence or
any ofthem. Yet, clause (4) of Article 16 empowers the state to make
provisions for the reservation of appointments or posts in favour of any
D backward class of citizens which is not adequately represented in the
services under the state. Article 17 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
E
or the throwing open of Hindu religious institutions ofa 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 ofreligion. Article 26 guarantees
certain rights to religious denominations. Article 29 guarantees to every
F section of the citizens with a distinct language, scriptorculture of its own
the right to conserve the same. Article 30 protects the rights ofreligious
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,
G to education and to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases ofundeserved want. Article
46 mandates that the stateshall 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
H them from social injustice and all forms of exploitation. Article 330 and
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 235
ORS. [DR. D. Y. CHANDRACHUD, J.]

Article 332 provide forthe reservation of seats forthe Scheduled Castes A
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
B
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 c
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 oh the
basis of immutable characteristics as they are ofa social mobilisation to
answer centuries of iri,Justice. They are part of the central theme of the D
Constitution to produce ajust 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 E
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 charactetistics of the candidate. Electors however,
may have and in fact do have a legitimate expectation that the F
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 G
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( I)(a) of the Constitution. This fundamental right H
236 SUPREME COURT REPORTS [2017] l S.C.R.

A is subject to reasonable restrictions as provided in the Constitution. Section
123(3) was not meant to and does not refer to the religion (or race,
community, language or caste) of the voter. If Parliament intended to do
so, it was for the legislature to so provide in clear and unmistakable
terms. There is no warrant for making an assumption that Parliament
while enacting Section 123(3) intended to sanitize the electoral process
B
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
c "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
D c.andidate on the ground of his religion, race, caste, community or language
is also an appeal on the ground of religion. If a candidate sol.icits 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
E
discussion, debate or dialogue during the course of an election campaign
on issues pertaining to religion or on issues of caste, community, race or
language. Discussion of matters relating to religion, caste, race, community
or language which are ofconcern to the voters is not an appeal on those
grounds. Caste, race, religion and language are matters of constitutional
F importance. The Constitution deals with them and contains provisions
forthe 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
G deny religion, caste, race, community or language a positio11 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
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 237
ORS. [DR. D. Y. CHANDRACHUD, J.]

only be fostered by protecting the right of citizens freely to engage in a A
dialogue in public spaces. Dialogue and criticism lie at the heart of
mobilising opinion. Electoral change is all about mobilising opinion and
'llotivating others to stand up against pattems 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
B
language.
22. What is proscribed by Section I 23(3) is a candidate soliciting
votes for himself or making a request for votes not to be cast for a rival
candidate on the basis of his own (or of the rival candidate's) religion
etc. Where an election agent has made an appeal on the proscribed
ground, that implicates the candidate because 1he election agent is a
c
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 D
have adopted is that first and foremost, Section 123(3) must be interpreted
-I
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 I 23(3) must refer to the caste, religion, race, community or
language of the voter. On the contrary, there are sound eonstitutional
reasons, which militate against Section 123(3) being read to include a E
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. F
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
G
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 I 24 contained the
following:
H
238 SUPREME COURT REPORTS [20 l 7] l S.C.R.

A "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 t~e. prospects of a
B 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", ifan act were to
constitute a corrupt practice. Systematic meant something more than a
.singular act. It required acts which were regular or repetitive.
c 25. In 1956, Parliament enacted an amending law" 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 :

D "123. Corrupt practices.-
(3) The systematic appeal by a candidate or his agent or by any
other person, to vote or refrain from voting on grounds of caste,
race. community or religion or the use of, or appeal to, religious
symbols or the use of, or appeal to, national symbols, such as the
national flag or the national emblem, for the furtherance of the
E
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 appe,al
may be by a candidate or his agent or by any other person. In 1958, an
F amending Act" 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
G December 1958 which feltthat 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 ifthe person engaging
in the action had acted with the consent of the candidate or his election
agent.
"Act 27 of 1926
H "[Act58oJ'I958]
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 239
ORS. [DR. D. Y. CHANDRACHUD, J.]

27. In 1961, sub-section (3) of Section 123 was substituted and a 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 thecsubstituted sub-section (3) were the following:
B
(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'; c
(iii) In addition to religion, race, caste and community, a reference
to' language' was introduced;
(iv) The word 'gr~JUnds' was substituted by the word 'ground';
and
D
(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:
E
"(3) The appeal by a candidate or his agent or by any other
perS()i!,'.Ylth 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 11ational emblem, for F
the furtherance of the prospects of the election of that candidate
or for prejudicially affecting the election of any candidate.
Simultaneously, with the substitution of Section 3, sub-Section (3A) was
'introduced into Section 123 to incorporate another corrupt practice in
the following terms : G
"(3A) The promotion of, or attempt to promote, feelings of enmity
or-hatred between different classes of the citizens of lndia 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 H
240 SUPREME COURT REPORTS [2017] 1 S.C.R.

A 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
B 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 0>1cnsible reason
given is that communal and caste propaganda and tile enmity arising
c 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
D I am afraid that it would be used against anyone seeking to
criticize unjust practices based on caste or community,
resulting in social oppression, or those, who give
expression to grievances under which any caste, community
' or minority group may suffer, would be charged of corrupt
E 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
F 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
G 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:
H
ABHlRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 241
ORS. [DR. D. Y. CHANDRACHUD, J.]

·"Clauses 25, 26, 29 and 30 - For curbing communal and separatist A
tendencies in the country it is proposed to widen the scope of the
corrupt practice mentioned in clause (3) of Section 123 of the
195 I-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
B
feelings of hatred and enmity no grounds of religion, race, caste,
community or language. It is also proposed that conviction for this
new offence will entail disqualification for membership of
Parliament and of State Legislatures and also for voting at any
election. This is proposed to be done by suitable amendments in
section 139 and section 141 of the 1951-Act as in clauses 29 and c
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 D
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 grollitd
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 E
between different classes of the citizens oflndia 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 F
election ofany candidate. While widening the ambit ofthe c01TUpt 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 tllen the Law Minister explained the reason for the
introduction of the word 'his' in a speech in the Lok Sabha:
G
"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
H
242 SUPREME COURT REPORTS (2017] I S.C.R.

A the section. I would have been against such an amendmen.t,
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.
B 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 aud 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
c 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
D Hindi, I speak Garhwali, or 1speak 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
E 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.
F ••. But if you say that Bengali language in this area is being
suppressed or the schools are being closed, as Shri
Hynniewta was saying, because they bore a particular name,
then, you are speaking ncit only to fight in an election but
you are also really seeking to protec~ your fundamental
G
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.
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 243
ORS. (DR. D. Y. CHANDRACHUD, J.]

And, no progressive panywill run an election on that line. Similarly, A
on the ground ofreligion." (emphasis supplied)
The speech of the Law Minister, who moved the Bill leaves no manner
of doubtthat 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 B
by an appeal to refrain from voting.
31. The traditional view of courts both in In<lia and the UK was a
rule of exclusion by which parliamentary history was not readily utilized
in interpreting a law. But as Justice GP Singh points out in his 'Principles
of Statutory Interpretation", the Supreme Court of India utilized c
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 D
occasion, the court used this aid in resolving questions of
construction. The court has 11ow veered to the view that legislative
history within circumspett 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 E
of the Act. As submitted earlier this distinction is unrealistic and
has now been abandoned by the House of Lords".'°
The evolution of the law has been succinctly summarized in the above
extract.
F
32. In an early decision of 1952 in State ofTravancore Co. v.
Bombay Co. Ltd.", Justice Patanjali Sastri while adopting the traditional
view observed that :
" XIVth Edn.P-253
10
72.State ofMysorev. R. V. Bidop, AIR 1973 SC 2555: (f 97312 SCC 5./7: Fag11Sha11·
V. State ofWB., AIR 1974 SC 613.p. 628, 629: (!97.JJ_±5C_(j_CJ-JJ316: 197./ sec
G
152: Union of India v. Sanka/chand, AIR 1977 SC 2328, p. 2373: (19771 ./ SCC
193 : 1977 SCC (Lab) 435: R. S. Nayak v. A.R. Antulay, (! 98./1 2 SCC 183. ov. 21 ./.
215: AIR 1984 SC 684: B. Prabhakar Rao v. State afAndhra Pradesh. AIR 1986SC
210, p. 215: 1985 S11pp SCC ./32: S11b-Cammitree af J11dicial Acco11111abi/i1y 1:
Union oflndia, AIR 1992 SC 320. p. 366: 09911.J SCC 699.
21 AJR 1952 SC 366 . .
H
244 SUPREME COURT REPORTS [20 l 7] l S.C.R.

A "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 thatthe
minds of all those legislators were in accord'". "A statute'', said
Sinha, CJ.I., "is the expression of the collective intention of the
B
Legislature as a whole and any stateme1it maile by an individual,
albeit a minister, of the intention and object of the Act, cannot be
used to cut down the generality of the words used in the statute."
In State of West Bengal v. Union oflndia22 , Justice Sinha stated
that a statute is the expression of the collective intention of the legislature
c 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
Chowdhnri v. Union of lndia'3, Justice Fazl Ali adverted to the
parliamentary history including the statement of the Minister introducing
D a Bill as.evidencing the circumstances which necessitated the passing
of the legislation. Over a period of time, the narrow view favouring the
excl~sion of legislative history has given way to a broader perspective.
Debates in the Constituent Assembly have been utilized as an aid to the
int~rpretation ofa constitutional provision (Indra Sawhney v. J]nion of
India"). Parliamentary debates have been relied upon in the context of
E a dispute relating to the construction of the Patents Act, 1970, (Novartis
AG v. Union oflndia"); 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.)" ISee also in this context Union oflndia v. Legal Stock Holders
F Syndicate", K.P. Vergese v. Income Tax Officer'', Surana Steels
Pvt. Ltd. v. Dy Commissioner of Income Tax").
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:
G "(1964) I SCR371
"AIR 1951 SC41
"AIR 1993 SC 477
"(2013) 6 sec IJ
" ( 1972) 1 sec 298
"AIR 1976 SC 879
"AIR 1981SC1922
H " ( 1999) 4 sec 306
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 245
ORS. [DR. D. Y. CHANDRACHUD, J.]

" ... (iii) i'v!odern 1re11d.-The school of thought that limited but A
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 . . Jn that
case LORD BROWNE WILKINSON who delivered ihe leading
speech which was agreed to by five other law Lords (LORD
B
KEETH, LORD BRl'DGE, 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 b.e c
permitted where such material clearly <liscloses,the mischief aimed
at or the legislative intention lying behind the ambiguous orobscure
words. In the case of statements made in Parliament, as at present
advised. I cannot foresee that any statement other than the
statement ofthe minister or other promoter of the Bill is likely to
D
meetthese criteria." In reaching this conclusion LORD BROWNE
WILKINSON reasoned that "the Court cairnot attach a meaning
to words which they cannot bear, but if the words are capable of
bearing more than one meaning why should not Parliament's true
intention be enforced.''
The use of parliamentary debates as an aid to statutory interpretation E
has been noticed in several decisions of this Court'°.
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 ChiefJustice
then was) in Dr RY Prabhoo v. PK Kunte". F

35. In Bennion on Statutory Interpretation", the need for a
balance between the traditfonal view supporting the exclusion of the
enacting history of a statute and the more re.al istic contemporary doctrine
al lowing its use as an aid to stat~utory interpretation has been brought out
succinctly. This is evident from the following extract: G
'" .. Theyssen Stahlunia GMI3H v. Steel Authority of lndia.JT I 999(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
"(1995) 7 SCALE I
3
~ Indian Reprint Sixth Edition page 561 H
246 SUPREME COURT REPORTS [2017] 1 S.C.R.

A "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'
B
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
c there is some substantial reason requiring it to be kept out."
The modern trend is to enable the court to look at the enacting history of
a legislation to foster a full understanding of the meaning behind words
used by the legislature, the mischief which the law seeks to deal and in
the process, to formulate an informed interpretation of the law. Enacting
D history is a significant element in the formation of an informed
interpretation. p
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,
E 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 ifthe 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"
F 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 reqtiircment
of a systematic appeal,'Parliament had constrained the application of
Section 123(3) only to cases.where as the word systematic indicates the
G 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 m1ture was introduced in 1961. The position can be
looked at from more than one perspective. When Parliament expanded
the ambit of Section 123(3) in 1961,it was entitled to determine the extent
to which the provision s_hould be widened. Parliament would be mindful
H
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 247
ORS. [DR. D. Y. CHANDRACHUD, J.]

of the consequence of an unrestrained expansion of the ambit of Section A
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
B
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 c
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
D
word "his" achieves just that purpose.
F. Precedent
37. Several decisions of this Court have construed the provisions
of Section 123(3). While adverting to those decisions, it would be
necessary to note that each of the decisions was rendered in the context E
of the provision as it then stood. As noted earlier Section 123(3) has
c. . undergone statutory changes over the years. In Jagdev Singh Sidhanti
v. Pratap Singh Danita", 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 F
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 G
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
123(3). Therefore it is only when the electors are asked to vote or
33
(1964)6SCR 7500udgmentdeli1·ercdo11l2February1964) H
248 SUPREME COURT REPORTS [2017) 1 S.C.R.

A 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 wi 11 not amount to a corrupt
practice".
B
Jn that case, it was alleged by the election petitioner that the returned
candidate had exhorted the electorate to vote forthe Hariana Lok Samiti
if it wished to protect its own language. These exhortations to the
electorate were held lo have been made to induce the government to
change its language policy or to indicate that a political party would
c 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.
D 38. Jn Kultar Singh v. Mukhtiar Singh", a Constitution Bench
of this Court emphasized the salutary purpose underlyingSection 123(3)
in the following observations :
"7. The corrupt practice as prescribed by Section 123(3)
undoubtedly constitutes a very healthy and salutary provision which
E 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 ai1d the
different legislative bodies must be free from the unhealthy
influence of appeals to religion, race, caste, community or language.
F Jf 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
G 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

H "AIR 1965 SC 141 [Judgment delivered on 17 April 1964]
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 249
ORS. [DR. D. Y. CHANDRACHUD, J.]

the Constitution Bench was whether these speeches amounted to an A
appeal to the voters to vote for the appellant on the ground of his religion
and whether the distribution of certain posters constituted an appeal to
the voters on the ground of the appellant's religion. The context indicates
that the words of Section 123(3) were applied to determine whether
there was an appeal on the ground of the religion of the candidate who
B
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 c
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 ifthe appellant is elected; and that necessarily means
that the appellant belongs to theAkali Dal Party and the Akali Dal
Party is the strong supporter of the Punjabi Suba. In these D
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 E
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 F
to vote for him because of his religion." (emphasis supplied)
In Kanti Prasad Jayshanker Yagnik v. Purshottam Das
Ranchhoddas Patel", 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 G
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 Paity in the name of the religion." In our opinion,
there is no bar to a candidate or his supporters appealing
"(1969)1SCC455 H
250 SUPREME COURT REPORTS (2017] 1 S.C.R.

A 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)
B
The expression "his religion" was hence specifically construed to mean
the religion of a candidate.
39. A decision of two learned judges of this Court in Ambika
Sharan Singh v. Mahant Mahadeva and Giri", involved a case where
c it was alleged thai 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
D 11imselfat some places, and at other places by others including his election
agent Ambika Sharan was therefore a case where an appeal was
made on the ground of the religion of the candidate.
40. The decision of the Constitution Bench was followed by a
Bench of three Judges of this Court in Ziyauddin Bukhari v. Brijmohan
E Ramdas". 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)
F following the decision in Kultar Singh. This was affirmed by this Court
with the following observations: •
"30. The High Court had referred to Ku/tar 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
G 123(3) of the Act ifhe 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
36
(1969)3 SCC492
H "(1976)2 sec 11
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 251
ORS. [DR. D. Y. CHANDRACHUD, J.]

represent Muslims. Nothing could be a clearer denunciation of a A
· rival on the ground ofreligion. 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
Kumte 38 , the provisions of Section 123(3) were construed and it was B
held that an appeal was made to the voters to vote in favour of the
appellant on th\l 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
c
formingthe 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 D
... 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
E
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 F
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 tlie 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
G
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 tl1e particular religion on the basis of which an
appeal to vote or refrain from voting for any person is prohibited
under Sub-section (3)."
'"< 1996) 1sec130 H
25:2 SUPREME COURT REPORTS [2017] 1 S.C.R.

A The same view was adopted in Manohar Joshi v. Nitin Bhaurao
Patil 39 . This Court held that:
''62. We would now consider the only surviving question based on
the pleading in para 30 of the election petition. The specific
'allegation in para 30 against the appellant is that in the meeting
B held on 24-2-1990 at Shivaji Park, Dadar, he had stated that "the
first Hindu State will be established in Maharashtra". ft is further
pleaaed therein that such meetings were held at Khaddke Building,
Dadaron 21-2-1990, Prabhadevi on 16-2-1991' t Kumbharwada
0

on 18-2-1990 and Khed Galli on 19-2-1990. These further facts
are unnecessary in the context because the maximum impact
c thereof is to plead that the same staiement 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
D 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 forvotes on the ground of his religion. Assuming that the
making of such a stat~ment 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
E
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."
F In Harmohinder Singh Pradhan v. Ranjit Singh Talwandi'° 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
G the appeal to vote or refrain from voting is made. This is clear
from the plain language of sub-section (3) and this is the only
manner in which the word "his" used therein can be construed.
When the appeal is to vote on the ground of"his" religion forthe
"(1996) 1sec169
H "' (2005) s sec 46
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 253
ORS. [DR. D. Y. CHANDRACHUD, J.]

furtherance of the prospects of the election of that candidate, that A
appeal is made on the basis of the religion of the candidate fo~
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 ofany candidate, that appeal
is based on the religion of the candidate whose election is sought
B
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 c
is a positive appeal and the second a negative appeal. Sub-
section (3) clearly indicates the particular religion on the basis of
which all' 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 D
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 ofninejudges in S RBommai v. Union oflndia",
the judgments of Justice P.B. Sawant (speaking for himself and Justice E
Kuldip Singh), Justice Ramaswamy and Justice BP Jeevmi 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 Consti_tution 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 F
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 th_e name of the G
said religion. According to him, it did not prohibit the candidate
from seeking vote in the name ofa religion to which the candidate
did not belong. With respect, we are unable to accept this
contenti.on. Reading sub-sections (3) and (3-A) of Section
"<1994)3sec1 H
254 SUPREME COURT REPORTS [201 7] 1 S.C.R.

A 123 wgether, 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
B
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) am.. 3ection l 23(3A)
the learned judge held that:
c "196. The contention ofShri 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 ofrival candidate in the election contest
and the ratio therein cannot be extended when a political party
D has espoused as part of its manifesto a religious cause, is totally
untenable. This Court laid the law though in the context of the
contesting candidates, that interpretation lends no licence to a
political party to influence the electoral prospects on grounds of
religion. In a secular democracy, like ours, mingling of
religion with politics is unconstitutional, in other words a
E 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
F 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:
G
"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
H practice. Even a single instance of such a nature is enough
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 255
ORS. [DR. D. Y. CHANDRACHUD, J.]

to vitiate the election of the candidate. Similarly, sub-section A
(3-A) of Section 123 provides that "promotion of, or attempt to
promote, feelings of enmity or hatred between different classes
of citizens oflndia on grounds ofreligion, 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
B
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 c
democracy" a111ong others. Since the Election Commission appears
to have made some other orders in this behalf after the conclusion
of arguments and because those orders have not been place
before us or debated, we do not wish to say anything more on this
subject". (emphasis supplied)
D
In Mohd. Aslam v. Union of India'°, 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 E
assistance in construing those provisions. Bommai does not provide a
conclusive interpretation of Section 123(3). Secularis111 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
F
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 torefrain 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 G
often conflicting values. Even when the values do not conflict, the
legislating body has to determi~hat weight should be assigned to
each value in its calculus, Parliament has made that determination and
the duty of the cowt is to give effect to it.
., <1996) 2 sec 749 H
256 SUPREME COURT REPORTS (2017] 1 S.C.R.

A 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 fora candidate
B 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
c nature of an electoral practice is mandated, the legislative history also
supports that view.
45. Section l 23(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
D 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 l 23(3A) does not refer to the religion, race, caste, community or
language ofa candidate or ofa rival candidate (unlike Section 123(3)
which uses the expression "his"). Section I 23(3A) refers to the promotion
E of or attempts to promote foe lings of enmity or hatred between different
classes of the citizens of India on grounds of religion, race, caste,
community or language. Section l 23(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 l 23(3A) is contrasted with Section 123(3).
F 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 ofan
G election statute involving a statutory provision ofacriminal 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
H
.ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS, & 257
ORS. [DR. D. Y. CHANDRACHUD, J.]

brought about by a parliamentary amendment stating in clear terms that A
'his' religion would also include the religion of a voter. In the absence of
such an amendment, the expression 'his' in Section 123(3) cannot refer
to the religion, race, caste, community or language of the voter.
46. Finally, it would be necessary to refer to the principle enunciated
in the judgment of a Constitution Bench of this Court in Keshav Mills B
Company Ltd. v. Commissioner of Income Tax, Bombay North,
Ahmedabad". A change in a legal position which has held the field .
through judicial precedent over a length oftime 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 c
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 D
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 Cou1t to introduce and maintain an element of E
certainty and continuity in the interpretation oflaw in the country.
Frequent exercise by this Court of its power to review its earlier
decisions on the ground thaj 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 F
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 ofunanimity amongst its members
that a revision ofthe said view is fully justified. It is not possible or G
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 ofreviewing and revising its earlier decisions. It
would always depend upon several relevant considerations:- What
"(1965) 2 SCR 908 H
258 SUPREME COURT REPORTS [20 l 7] l S.C.R.

A is the nature of the infirmity or error on which a plea for review
and revision of the earlier view is based? On the earlier occasion,
did some patent aspects of the question remain unnoticed, or was
the attention of the Court not drawn to any relevant and material
statutory provision, or was any previous decision of this Court
bearing on the point not noticed? ls the Court hearing such plea
B
fairly unanimous that there is such anerror in the earlier view?
What would be the impact of the error on the general
administration oflaw or on public good? Has the eaflier decision
been followed on subsequent occasions either by this Court or by
the High Courts? And, would the reversal of the earlier decision
c lead to public inconvenience, hardship or mischief? These and
other relevant considerations must be carefully borne in mind
whenever this Cou1t 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
D
learned Judges of this Court."
47. In a recent judgment of a Constitution Bench of this Court in
Supreme Court Advocates on Record Association v. Union of
India 44 , this Court has considered the circumstances in which a
reconsideration of an earlier decision can be sought.
E
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
F same issue, should ordinarily not agree to re-examine the matter
yet again, and spend more time for an issue, already well thrashed
out. ... "
48. Justice Madan B Lokur while dealing with the circumstances
under which the reconsideration of an earlier judgment can be sought,
G articulated certain broad principles: (i) if the decision concerns an
interpretation of the constitution, the bar for reconsideration might be
lowered a bit; (ii) ifthe decision concerns the imposition ofa 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

H "(20l6J s sec 1
ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & 259
·-"' ORS. [DR. D. Y. CHANDRACHUD, J.]

by the constitution, then too the bar might be lowered; (iv) the court A
must be convinced that the decision is plainly erroneous and has a baneful
effect on the public; (v) ifthe 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
B
judiciou5ly;{vii) an earlier decision may be reconsidered ifa material
provision is overlooked or a fundamental assumption is found to be
erroneous or ifthe issue is offundamentalimportance 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 c
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: D
"976 .... I would like to add one more, as the tenth. Once this
a
Court has addressed an issue on substantial question of law as
to the .structure of the Constitution and has laid down the l_aw, a
request for revisit shall not be welcomed unless it is shown that
the structural interpretation is palpably erroneous .... ". E
Justice AK Goel formulated the principle in the following terms:
"I 051. 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 coutt should not, except
when it is demonstrated beyond all reasonable doubts that its F
previous ruling given after due deliberation and full hearing was
erroneous, revisit earlier decisions so thatthe law remains certain.
[Gannon Dunkerley and Co. v. State ofRajasthan, (1963) 1 SCC
364, paras 28 to 3 l]ln exceptional circumstances or under new
set of conditions-in the light of new ideas, earlier view, if considered G
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"
H
260 SUPREME COURT REPORTS (2017] I S.C.R.

A 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.
B 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 prov.isions of
Section 123(3 ). Despite this, the provision has remained untouched
though several others have undergone a change. In the meantime, elections
have been held successfully, governments have changed and majorities
c have been altered in the house of Indian democracy. There is merit in
ensuring a continuity ofjudicial 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 forrn of government is perfect. The actual unfolding of democracy
D and the working of a democratic constitution may suffer from
imperfections. But these imperfections cannot be attended to by an
exercise ofjudicial redraftingofa 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
E 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.
.. ORDER

F The reference is answered in light of the majority opinion. The
appeals shall now be listed for hearing before the regular bench to be
constituted by Hon'ble the Chief Justice oflndia.
The Registry is directed to place the papers before Hon'ble the
Chief Justice of India for appropriate orders.
G Kalpana K. Tripathy Referred question answered.