2017 Supreme(SC) 8

SUPREME COURT OF INDIA
T.S. THAKUR, CJI., ADARSH KUMAR GOEL, UDAY UMESH LALIT, MADAN B. LOKUR, L. NAGESWARA RAO, S.A. BOBDE, D.Y. CHANDRACHUD, JJ.
ABHIRAM SINGH – APPELLANTS
VERSUS
C.D. COMMACHEN (DEAD) BY LRS. & ORS. – RESPONDENTS
CIVIL APPEAL NO. 37 OF 1992
WITH
NARAYAN SINGH – APPELLANTS
VERSUS
SUNDERLAL PATWA & ORS. – RESPONDENTS
CIVIL APPEAL NO. 8339 OF 1995
Decided On : 02-01-2017

IMPORTANT POINTS
By enacting section 123(3) the Parliament intended to provide a check on "undesirable development" of appeals to religion, race, caste, community or language of any candidate.
The Court by majority of four to three held that section 123(3) refers to religion of the candidate or his rival and not the voter.
Per majority
Election petitions alleging corrupt practices have a quasi-criminal character. Require strict construction.
"To vote" implies in favour of a particular candidate or not to vote for a rival candidate.
Word ‘his’ associates with a person previously mentioned. Used in conjunction with religion, race, caste, community or language is in reference to the religion, race, caste, community or language of the candidate or that of a rival candidate making appeal for votes. Not referring to the religion, race, caste, community or language of the voter. ‘His' religion must hence refer to religion of the candidate or his rival.
The statute does not prohibit discussion, debate or dialogue during the course of an election campaign on issues pertaining to religion or on issues of caste, community, race or language. It only prohibits appeal to the voter on that ground.
Parliamentary debates and even a speech by the Minister moving a Bill can be utilized as an aid to interpretation.
A political agitation for the conservation of the language of a section of citizens is not a corrupt practice.
Section 123(3A) does not refer to the religion, race, caste, community or language of a candidate or of a rival candidate in contrast to section 123(3). One cannot be read into the other.
Interpretation of section 123(3) that it refers to religion etc of the candidate has endured through the times and many elections. No case made out to have a relook.

Headnote:Per Madan B. Lokur, J. (Minority view)

       (a) Representation of the People Act, 1951 – Section 123(3) – Legislative intent – To provide a check on "undesirable development" of appeals to religion, race, caste, community or language of any candidate – In (1969) 1 SCC 455 Scope limited to appeal on ground of the religion of the candidate – (1996) 1 SCC 130 held that religion must be that of the candidate – Over the years the Courts giving broad as well as narrow interpretation to section 123(3) – Hence this reference. (Para 7, 8, 10, 11, 13)

       (1964) 6 SCR 750; AIR 1965 SC 141 : (1964) 7 SCR 790; (1969) 1 SCC 455; (1996) 1 SCC 130; (1996) 2 SCC 749 – Relied upon

       (1994) 3 SCC 1; (2003) 9 SCC 300; (1996) 3 SCC 665; (2014) 14 SCC 382 – Referred

       (b) Representation of the People Act, 1951 – Section 123(3) and section 153A, Indian Penal Code, 1860 – Corrupt practices – A sort of ‘package deal' – Any appeal to communal, fissiparous and separatist tendencies leading made an electoral offence leading to voiding an election and a possible disqualification of the candidate from contesting an election or voting in an election for a period – An aggravated form of any such tendency could invite action under the criminal law of the land. (Para 31)

       (c) Representation of the People Act, 1951 – Section 123(2), (3) and (3A) – Consideration of mischief sought to be suppressed by Section 123(2), (3) and (3A) – Necessary to advert to historical, political and constitutional background of our democratic set-up. (Para 35)

       (1976) 2 SCC 17; (1985) 1 SCC 370 – Referred

       (d) Interpretation of statute – Considerations – Not only the text of the law but the context in which the law was enacted and the social context in which the law should be interpreted – A pragmatic view is required to be taken and the law interpreted purposefully and realistically so that the benefit reaches the masses – A broad (Para 36, 38)

       [2003] UKHL 13 – Relied upon

       (e) Interpretation of statute – Purposive interpretation – Social context adjudication – Section 123(3), Representation of the People Act, 1951 – Purposive and broad interpretation rather than a literal or strict interpretation – Absolutely necessary – ‘Religion’ cannot be restricted to that of the candidate or his rival. (Para 46, 49)

       (1989) 2 SCC 754; (1974) 2 SCC 402; (2014) 1 SCC 188 – Relied upon

       (1964) 6 SCR 750, (1969) 1 SCC 455; (1996) 1 SCC 130 – Distinguished

       (f) Representation of the People Act, 1951 – Section 123(3) – Constitutional validity – Right to stand as a candidate and contest an election is a special right created by statute – Can only be exercised on the conditions laid down by the statute – Fundamental Rights Chapter has no bearing on such a right – The candidates however must observe the rules – The provision itself is held intra vires. (Para 47)

       (g) Representation of the People Act, 1951 – Section 123(3) – No interpretation is well-recognised and settled – Doctrine of stare decisis not attracted. (Para 48)

       Per S. A. Bobde, J. (Minority view)

       (h) Interpretation of statute – A literal interpretation does not exclude a purposive interpretation of the provisions. (Para 51)

       1984 CH 382 : (1983) 3 All ER 481 (CA) – Relied upon

       (i) Representation of the People Act, 1951 – Section 123(3) – Word ‘his’ – Not referring only to then candidate or his agent – Also intended to refer to the voter – What is bared is the appeal on certain grounds – Word "his" embraces the entire transaction of the appeal to vote made to voters – Purposive interpretation. (Para 52, 53)

       (2002) 4 SCC 297 – Relied upon

       (j) Interpretation of statute – Intention of the legislature should not be frustrated – Any doubt or ambiguity must be resolved by recourse to the rules of purposive construction. (Para 56)

       (2003) 7 SCC 628 – Relied upon

       Per T.S. Thakur, CJI (Minority view)

       (k) Representation of the People Act, 1951 – Section 123(3) as amended in 1961 – Parliamentary intention to widen scope of corrupt practices – Deletion of word ‘systematic’ – Could not be restricted at the time by the word ‘his’ – Cannot be confined to religion of the candidate – Constitution does not recognize or permit mixing religion and State power – Section 123(3) and (3A) should be interpreted to maintain national integrity, unity amongst the citizens of the country and the secular character of the society. (Para 65, 75, 77, 79)

       AIR 1962 SC 853; (1974)1 SCC 717; (1975) Suppl. SCC 1; (1994) 3 SCC 1; (2005) 11 SCC 45; (1996) 9 SCC 351 – Relied upon

       (l) Interpretation of statute – Legislative history should also be considered – If two constructions of a statute were possible, one that promotes the constitutional objective ought to be preferred over the other that does not do so – Held, Section 123(3) forbids interference of religions and religious beliefs with secular activity of elections to legislative bodies. (Para 81, 84, 85)

       AIR 1962 SC 955; [1995] Supp.4 SCC 469; (2015) 8 SCC 1 – Relied upon

       Per D.Y. Chandrachud, J. (Majority view)

       (m) Interpretation of Penal statute – Election petitions alleging corrupt practices have a quasi-criminal character – Strict construction of the words used by the legislature must be adopted – ‘Corrupt practices' in section 123(3), Act 1951 must be construed strictly – Therefore standard of proof in an election trial veers close to that which guides a criminal trial – a (Para 95, 96)

       (1951) 1 SCR 158; (1977) 3 SCC 566; (1996) 2 SCC 743; (1999) 8 SCC 74; (2003) 4 SCC 642; (2013) 9 SCC 659 – Relied upon

       (n) Representation of the People Act, 1951 – Section 123(3) – "To vote" – In favour of a particular candidate or not to vote for a rival candidate – Word ‘his’ – Associates with a person previously mentioned – Used in conjunction with religion, race, caste, community or language is in reference to the religion, race, caste, community or language of the candidate or that of a rival candidate making appeal for votes – Not referring to the religion, race, caste, community or language of the voter – ‘His' religion must hence refer to religion of the candidate or his rival. (Para 99)

       (o) Representation of the People Act, 1951 – Section 123(3) – Use of words ‘the’ (definitive article) and ‘ground’ (singular) in the expression "the ground of his religion"– Indicating legislative intent of proscribing 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. (Para 100)

       (p) Representation of the People Act, 1951 – Section 123(3) – In adopting Section 123(3) Parliament did not intend to obliterate or outlaw references to religion, caste, race, community or language in elections – The corrupt practice lies in an appeal being made to vote for a candidate on the ground of his own religion, race, caste, community or language – The statute does not prohibit discussion, debate or dialogue during the course of an election campaign on issues pertaining to religion or on issues of caste, community, race or language – A particular theory based on purposive interpretation should not be adopted by the Court when it 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. (Para 104, 105, 106)

       (q) Representation of the People Act, 1951 – Section 123(3) – Interpretation – Legislative history – Originally, the Act distinguished between minor and major corrupt practices – Comprehensive definition of ‘corrupt practices’ provided in section 123 by Amendment 1956 requiring ‘systematic appeal’ – Omitted by Amendment 1958 – Amendment 1961 substituted section 123 and introduced section 123(3A) – Ambit of sub-section (3) widened – Looking to the legislative history word ‘his’ section 123(3) referred to the religion of the candidate. (Para 114)

       (r) Interpretation of statute – Parliamentary debates – As an aid to interpretation – Even a speech by the Minister moving a Bill can be utilized – The traditional view supporting exclusion of legislative history of a statute and the more realistic contemporary doctrine allowing its use as an aid to statutory interpretation needs balancing – In absence of word ‘his’ prior to Amendment 1961, appeal to religion was not required to relate to an appeal to the religion of the candidate – Word ‘his’ introduced to restrict the ambit to the candidate. (Para 116, 117, 119, 120)

       AIR 1952 SC 366; (1964) 1 SCR 371; AIR 1951 SC 41; AIR 1993 SC 477; (2013) 6 SCC 1; (1972) 1 SCC 298; AIR 1976 SC 879; AIR 1981 SC 1922; (199) 4 SCC 306; JT 1999(8) SC 66: (1999) 9 SCC 334; AIR 2000 SC 1287: (2000) 3 SCC 250; AIR 2009 SC 792 : (2008 6 SCALE 275; (1995) 7 SCALE 1 – Relied upon

       (s) Representation of the People Act, 1951 – Section 123(3) – A political agitation for the conservation of the language of a section of citizens is not a corrupt practice – Expression ‘his' is used in the context of an appeal to vote for a candidate on the ground of the religion, race, caste, community or language of the candidate. (Para 121, 128)

       (1964) 6 SCR 750; AIR 1965 SC 141; (1969) 1 SCC 455; (1969) 3 SCC 492; (1976) 2 SCC 17; (1996) 1 SCC 130; (1996) 1 SCC 169; (2005) 5 SCC 46; (1994) 3 SCC 1; (1996) 2 SCC 749 – Referred

       (t) Representation of the People Act, 1951 – Section 123(3) and 123(3A) – Section 123(3A) refers to promotion of or attempt to promote hatred between different classes of citizens on the proscribed grounds by a candidate or by any person with the consent of the candidate – It does not refer to the religion, race, caste, community or language of a candidate or of a rival candidate in contrast to section 123(3) – One cannot be read into the other – Ambit of section 123(3) cannot be widened – Expression ‘his' in Section 123(3) cannot refer to the religion, race, caste, community or language of the voter. (Para 129)

       (u) Interpretation of statute – Doctrine of stare decisis – A change in a legal position which has held the field through judicial precedent over a length of time – Can be considered only in exceptional and compelling circumstances – Instantly, interpretation of section 123(3) that it refers to religion etc of the candidate has endured through the times and many elections – No case made out to have a relook. (Para 130, 134, 135)

       (1965) 2 SCR 908; (2016) 5 SCC 1 – Relied upon

       Facts of the case:

       This reference relates to the interpretation of corrupt “practices” in Section 123(3) of the Representation of the People Act, 1951.