TaxTMI 
TaxTMI 
2017 (1) TMI 1419
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....d the view that the content, scope and what constitutes a corrupt practice under sub- sections (3) or (3A) of Section 123 of the Representation of the People Act, 1951 (for short, 'the Act') needs to be clearly and authoritatively laid down to avoid a miscarriage of justice in interpreting 'corrupt practice'. The Bench was of opinion that the appeal requires to be heard and decided by a larger Bench of five Judges of this Court on three specific questions of law. 3. In Narayan Singh v. Sunderlal Patwa[(2003) 9 SCC 300] the election of Sunderlal Patwa from the Bhojpur Constituency No. 245 in Madhya Pradesh to the Legislative Assembly in 1993 was under challenge on the ground of a corrupt practice in that the returned candidate had allegedly made a systematic appeal on the ground of religion in violation of Section 123(3) of the Act. The election petition was dismissed. In appeal before this Court, the Constitution Bench noticed an anomalous situation arising out of an amendment to Section 123(3) of the Act in 1961 inasmuch as it appeared that a corrupt practice for the purposes of the Act prior to the amendment could cease to be a corrupt practice after the amendment. On the one ....
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.... of Section 123 of the Act. As it appears, under the amended provision, the words "systematic appeal" in the pre-amended provision were given a go-by and necessarily therefore the scope has been widened but by introducing the word "his" and the interpretation given to the aforesaid provision in the judgments referred earlier, would give it a restrictive meaning. In other words, while under the pre-amended provision it would be a corrupt practice, if appealed by the candidate, or his agent or any other person to vote or refrain from voting on the grounds of caste, race, community or religion, it would not be so under the amended provision so long as the candidate does not appeal to the voters on the ground of his religion even though he appealed to the voters on the ground of religion of voters. In view of certain observations made in the Constitution Bench decision of this Court in Kultar Singh case we think it appropriate to refer the matter to a larger Bench of seven Judges to consider the matter. The matter be placed before Hon'ble the Chief Justice for constitution of the Bench." 4. Thereafter, when Abhiram Singh was taken up for consideration by the Constitution Be....
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....s prescribed by Section 123(3) undoubtedly constitutes a very healthy and salutary provision which is intended to serve the cause of secular democracy in this country. In order that the democratic process should thrive and succeed, it is of utmost importance that our elections to Parliament and the different legislative bodies must be free from the unhealthy influence of appeals to religion, race, caste, community, or language. If these considerations are allowed any way in election campaigns, they would vitiate the secular atmosphere of democratic life, and so, Section 123(3) wisely provides a check on this undesirable development by providing that an appeal to any of these factors made in furtherance of the candidature of any candidate as therein prescribed would constitute a corrupt practice and would render the election of the said candidate void." [Emphasis supplied by us]. It is quite clear from a reading of the above passages that the concern of Parliament in enacting Section 123(3) of the Act was to provide a check on the "undesirable development" of appeals to religion, race, caste, community or language of any candidate. Therefore, to maintain the sanctity of the democ....
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....rism mentioned in the Preamble to our Constitution is a part of the basic structure of our Constitution. 11. Finally, in Ramesh Yeshwant Prabhoo this Court held that the use of the word "his" in sub-section (3) of Section 123 of the Act must have significance and it cannot be ignored or equated with the word "any" to bring within the net of sub-section (3) any appeal in which there is a reference to religion. It was further held that if religion is the basis on which an appeal to vote or refrain from voting for any person is prohibited by Section 123 (3) of the Act it must be that of the candidate for whom the appeal to vote is made or against a rival candidate to refrain from voting. This Court observed as follows: "There can be no doubt that the word 'his' used in sub-section (3) must have significance and it cannot be ignored or equated with the word 'any' to bring within the net of sub-section (3) any appeal in which there is any reference to religion. The religion forming the basis of the appeal to vote or refrain from voting for any person, must be of that candidate for whom the appeal to vote or refrain from voting is made. This is clear from the plain language o....
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....n a narrow manner in Jagdev Singh Sidhanti but in a broad manner in Kultar Singh without reference to Jagdev Singh Sidhanti. A narrow and restricted interpretation was given to Section 123(3) of the Act in Kanti Prasad Jayshanker Yagnik without reference to Jagdev Singh Sidhanti or Kultar Singh. Ramesh Yeshwant Prabhoo decided about four decades later gave a narrow and restricted meaning to the provision by an apparent misreading of Section 123(3) of the Act. Hence the apparent conflict pointed out in Narayan Singh. In any event today (and under the circumstance mentioned above) this provision falls for our consideration and interpretation. Legislative history 14. Corrupt practices during the election process were explained in the Act (as it was originally enacted in 1951) in Chapter I of Part VII thereof. Section 123 dealt with major corrupt practices while Section 124 dealt with minor corrupt practices. Chapter II dealt with illegal practices for the purposes of the Act. As far as we are concerned, Section 124(5) of the Act (dealing with minor corrupt practices) as originally framed is relevant and this reads as follows: (5) The systematic appeal to vote or refrain....
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....ligion 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. 19. Progressively therefore Section 123(3) of the Act and the corrupt practice that it recognized became candidate-centric in that a 'systematic appeal' would have to be made (to an elector) by a candidate, his agent or any other person with the candidate's consent or the consent of the candidate's election agent 'to vote or refrain from voting' on certain specified grounds 'for the furtherance of the prospects of a candidate's election'. 20. Apparently to make the corrupt practice more broad-based, the Act was sought to be amended in 1961. A Bill to this effect was introduced in the Lok Sabha on 10th August, 1961. The Notes on Clauses accompanying the Bill (the relevant clause being Clause 25) stated as follows: Clauses 25, 26, 29 and 30. - For curbing communal and separatist tendencies in the country it is proposed to widen the scope of the corrupt practice mentioned in clause (3) of section 123 of the 1951 Act (as in sub-clause (a) of clause 25), and....
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....of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. Similarly, an amendment was proposed in the new clause (3A) of Section 123 of the Act and this reads as follows: (3-A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. 23. Minutes of Dissent were recorded by two Hon'ble Members of Parliament in the Report of the Select Committee. Ms. Renu Chakravartty made some observations with regard to the proposed insertion of clause (3A) in Section 123 of the Act and then noted with reference to clause (3) thereof that: "Even the declared object of this Bill of curbing communalism seems to me not to be seriously meant. I suggest an ame....
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.... to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. (3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of that candidate or for prejudicially affecting the election of any candidate." 26. Significantly, the word "systematic" was deleted despite the dissent of Shri Balraj Madhok. The effect of this is that even a single appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate would be deemed to be a corrupt pra....
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.... groups or castes or communities and which disturbs or is likely to disturb the public tranquillity, shall be punished with imprisonment which may extend to three years, or with fine, or with both. Piloting the Bill 30. While piloting the Bill relating to the amendment to sub-section (3) of Section 123 of the Act the Law Minister Shri A.K. Sen adverted to the amendment to the IPC and indeed viewed the amendment to the Act as consequential and an attempt to grapple "with a very difficult disease." It is worth quoting what Shri A.K. Sen had to say for this limited purpose: "Now, I come to the main question with regard to clauses 23 and 24, that is, the new provision in clause 23 seeking to prohibit the appeal to communal or linguistic sentiments, and also clause 24 which penalizes the creation of enmity between different classes. Those hon. Members who feel that we should have kept the word 'systematic' have really failed to appreciate the very purpose of this amendment. There would have been no necessity of this amendment if the old section with the word 'systematic' had served its purpose. It is well known that the old section was as good as dead. There could have be....
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....e 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[There has been no substantial change in the language of the statute since then.] and in view of the limited reference made, to the interpretation of his religion, race, caste, community or language in the context in which the expression is used, we cannot completely ignore the contemporaneous introduction of sub-section (3A) in Section 123 of the Act nor the introduction of Section 153A of the IPC. Submissions and discussion 33. At the outset we may state that we heard a large number of counsels, many of them on behalf of interveners which included (surprisingly) some States. However, the leading submissions on behalf of the appellants on the issue before us were addressed by Shri Shyam Divan, Senior Advocate. Some learned counsels supplemented him while others opposed his narrow interpretation of the provision under consideration. 34. Basically, four....
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....ising out of conviction and corrupt practices. - (1) If any person, after the commencement of this Act, is convicted of an offence punishable under Section 171E or Section 171F of the Indian Penal Code (45 of 1860), or under Section 125 or Section 135 or clause (a) of sub-section (2) of Section 136 of this Act, he shall, for a period of six years from the date of the conviction or from the date on which the order takes effect, be disqualified for voting at any election. (2) Any person disqualified by a decision of the President under sub- section (1) of Section 8A for any period shall be disqualified for the same period for voting at any election. (3) The decision of the President on a petition submitted by any person under sub-section (2) of Section 8A in respect of any disqualification for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State shall, so far as may be, apply in respect of the disqualification for voting at any election incurred by him under clause (b) of sub-section (1) of Section 11A of this Act as it stood immediately before the commencement of the Election Laws (Amendment)....
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....s, appeals to those divisive factors which arouse irrational passions that run counter to the basic tenets of our Constitution, and, indeed, of any civilised political and social order. Due respect for the religious beliefs and practices, race, creed, culture and language of other citizens is one of the basic postulates of our democratic system. Under the guise of protecting your own religion, culture, or creed you cannot embark on personal attacks on those of others or whip up low herd instincts and animosities or irrational fears between groups to secure electoral victories. The line has to be drawn by the courts, between what is permissible and what is prohibited, after taking into account the facts and circumstances of each case interpreted in the context in which the statements or acts complained of were made." [Emphasis supplied by us]. The above expression of views was cited with approval in S. Hareharan Singh v. S. Sajjan Singh.[ (1985) 1 SCC 370 decided by a Bench of three learned judges] 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.....
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....tegory would now be held to do so. The courts have frequently had to grapple with the question whether a modern invention or activity falls within old statutory language: see Bennion, Statutory Interpretation, 4th ed (2002) Part XVIII, Section 288. A revealing example is found in Grant v Southwestern and County Properties Ltd [1975] Ch 185, where Walton J had to decide whether a tape recording fell within the expression "document" in the Rules of the Supreme Court. Pointing out (page 190) that the furnishing of information had been treated as one of the main functions of a document, the judge concluded that the tape recording was a document." 37. In the same decision, Lord Steyn suggested that the pendulum has swung towards giving a purposive interpretation to statutes and the shift towards purposive construction is today not in doubt, influenced in part by European ideas, European Community jurisprudence and European legal culture. It was said: "....... the adoption of a purposive approach to construction of statutes generally, and the 1990 Act [Human Fertilisation and Embryology Act 1990] in particular, is amply justified on wider grounds. In Cabell v Markham[(1945) 1....
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....t their famous resolution in Heydon's Case.[ (1584) 3 Co Rep 7a] Legislation is still about remedying what is thought to be a defect in the law. Even the most 'progressive' legislator, concerned to implement some wholly normal concept of social justice, would be constrained to admit that if the existing law accommodated the notion there would be no need to change it. No legal need that is ...." [Emphasis supplied by us]. 38. We see no reason to take a different view. Ordinarily, if a statute is well-drafted and debated in Parliament there is little or no need to adopt any interpretation other than a literal interpretation of the statute. However, in a welfare State like ours, what is intended for the benefit of the people is not fully reflected in the text of a statute. In such legislations, a pragmatic view is required to be taken and the law interpreted purposefully and realistically so that the benefit reaches the masses. Of course, in statutes that have a penal consequence and affect the liberty of an individual or a statute that could impose a financial burden on a person, the rule of literal interpretation would still hold good. 39. The Representation of the People Act,....
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....and now with access to millions through the internet and social media as well as mobile phone technology, none of which were seriously contemplated till about fifteen years ago. Therefore now, more than ever it is necessary to ensure that the provisions of sub-section (3) of Section 123 of the Act are not exploited by a candidate or anyone on his or her behalf by making an appeal on the ground of religion with a possibility of disturbing the even tempo of life. Social context adjudication 43. Another facet of purposive interpretation of a statute is that of social context adjudication. This has been the subject matter of consideration and encouragement by the Constitution Bench of this Court in Union of India v. Raghubir Singh (Dead) by Lrs.[ (1989) 2 SCC 754] In that decision, this Court noted with approval the view propounded by Justice Holmes, Julius Stone and Dean Roscoe Pound to the effect that law must not remain static but move ahead with the times keeping in mind the social context. It was said: "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 li....
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.... "As in life so in law things are not static. Fresh vistas and horizons may reveal themselves as a result of the impact of new ideas and developments in different fields of life. Law, if it has to satisfy human needs and to meet the problems of life, must adapt itself to cope with new situations. Nobody is so gifted with foresight that he can divine all possible human events in advance and prescribe proper rules for each of them. There are, however, certain verities which are of the essence of the rule of law and no law can afford to do away with them. At the same time it has to be recognized that there is a continuing process of the growth of law and one can retard it only at the risk of alienating law from life itself........." [Emphasis supplied by us]. 45. Finally, in Badshah v. Urmila Badshah Godse[(2014) 1 SCC 188] this Court reaffirmed the need to shape law as per the changing needs of the times and circumstances. It was observed: "The law regulates relationships between people. It prescribes patterns of behaviour. It reflects the values of society. The role of the court is to understand the purpose of law in society and to help the law achieve its purpose.....
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....enged as ultra vires Article 19(1)(a) of the Constitution. It was contended that Article 245(1) prohibits the making of laws which violate the Constitution and that the impugned sections interfere with a citizen's fundamental right to freedom of speech. There is nothing in this contention. These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament. The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. If they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them. We hold that these sections are intra vires." We need say nothing more on the subject. Overturning the settled legal position 48. Several decisions were cited before us to contend that we should not unsettle the long-standing interpretati....
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....urposive interpretation warrants a broad interpretation of that section. That the section is intended to serve the broad purpose of checking appeals to religion, race, caste, community or language by any candidate. That to maintain the sanctity of the democratic process and to avoid the vitiating of secular atmosphere of democratic life an appeal to any of the factors should avoid the election of the candidate making such an appeal. 2. I would, however, add that such a construction is not only warranted upon the application of the purposive test of interpretation but also on textual interpretation. A literal interpretation does not exclude a purposive interpretation of the provisions whether in relation to a taxing statute or a penal statute. In IRC v. Trustees of Sir John Aird's Settlement [1984 CH 382 : (1983) 3 All ER 481 (CA)], the Court observed as follows: "... Two methods of statutory interpretation have at times been adopted by the court. One, sometimes called literalist, is to make a meticulous examination of the precise words used. The other sometimes called purposive, is to consider the object of the relevant provision in the light of the other provisions of ....
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....s to the voter in addition to the candidate, his election agent etc. Also because the intendment and the purpose of the statute is to prevent an appeal to votes on the ground of religion. I consider it an unreasonable shrinkage to hold that only an appeal referring to the religion of the candidate who made the appeal is prohibited and not an appeal which refers to religion of the voter. It is quite conceivable that a candidate makes an appeal on the ground of religion but leaves out any reference to his religion and only refers to religion of the voter. For example, where a candidate or his election agent, appeals to a voter highlighting that the opposing candidate does not belong to a particular religion, or caste or does not speak a language, thus emphasizing the distinction between the audience's (intended voters) religion, caste or language, without referring to the candidate on whose behalf the appeal is made, and who may conform to the audience's religion, caste or speak their language, the provision is attracted. The interpretation that I suggest therefore, is wholesome and leaves no scope for any sectarian caste or language based appeal and is best suited to bring out the i....
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....ute must be strictly construed so as not to widen the scope and create offences which are not intended by the legislature. This submission is well-founded. However, it has no application where the action is clearly within the mischief of the provision. Parliamentary intent therefore, was to clearly proscribe appeals based on sectarian, linguistic or caste considerations; to infuse a modicum of oneness, transcending such barriers and to borrow Tagore's phrase transcend the fragmented "narrow domestic walls" and send out the message that regardless of these distinctions voters were free to choose the candidate best suited to represent them. 6. The correct question is not whether a construction which is strict or one which is more free should be adopted but - what is the true construction of the statute. A passage in Craies on Statute Law, 7th Edn. at Page No.531 reads as follows:- "The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. "All modern Acts are framed with regard to equitable as well as legal princip....
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....y reading the separate but conflicting opinions expressed by my esteemed brothers Madan B. Lokur and Dr. D.Y. Chandrachud, JJ. While both the views reflect in an abundant measure, the deep understanding and scholarship of my noble brothers, each treading a path that is well traversed and sanctified by judicial pronouncements, the view taken by Lokur, J. appears to me to be more in tune with the purpose and intention behind the enactment of Section 123(3) of the Representation of Peoples Act, 1951. I would, therefore, concur with the conclusions drawn by Lokur, J. and the order proposed by His Lordship with a few lines of my own in support of the same. 2. The legislative history of Section 123(3) as it now forms part of the statute has been traced in the order proposed by brother Lokur, J. I can make no useful addition to that narrative which is both exhaustive and historically accurate. I may, perhaps pick up the threads post 1958 by which time amendments to the Representation of People Act, 1951 had brought Section 123(3) to read as under:- "Section 123 (1) xxxxxx (2) xxxxxx (3) The systematic appeal by a candidate or his agent or by any othe....
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.... amendment was (a) to curb communal and separatist tendencies in the country (b) to widen the scope of the corrupt practice mentioned in sub-section (3) of Section 123 of the Act and (c) to provide for a new corrupt practice as in sub-clause (b) of clause 25. The proposed amendment was in the following words: "25. In Section123 of the 1951 Act, - in clause (3) - the word "systematic" shall be omitted, for the words "caste, race, community or religion", the words "religion, race, caste, community or language" shall be substituted; (b) after clause (3), the following clause shall be inserted, namely: - "(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of that candidate's election."- 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....
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....he amendment was to widen the scope of the corrupt practice under Section 123 (3) it had also restricted the same by using the word "his" before the word "religion" in the amended provision. According to Mr. Diwan the amendment in one sense served to widen but in another sense restrict the scope of corrupt practice. 9. I have found it difficult to accept that submission. In my view the unamended provision extracted earlier made any appeal in the name of religion, race, caste, community or language a corrupt practice regardless of whose religion, race, caste, community or language was involved for such an appeal. The only other requirement was that such an appeal was made in a systematic manner for the furtherance of the prospects of a candidate. Now, if that was the legal position before the amendment and if the Parliament intended to enlarge the scope of the corrupt practice as indeed it did, the question of the scope being widened and restricted at the same time did not arise. There is nothing to suggest either in the statement of objects and reasons or contemporaneous record of proceedings including notes accompanying the bill to show that the amendment was contrary to the ea....
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....nal ethos and the secular character of our polity. 11. That India is a secular state is no longer res integra. Secularism has been declared by this Court to be one of the basic features of the Constitution. A long line of decisions delivered by this Court on the subject have explained the meaning of the term 'secular' and 'secularism', but before we refer to the judicial pronouncements on the subject we may gainfully refer to what Dr. Radhakrishnan the noted statesman/philosopher had to say about India being a secular State in the following passage: "When India is said to be a secular State, it does not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that Secularism itself becomes a positive religion or that the State assumes divine prerogatives. Though faith in the Supreme is the basic principle of the Indian tradition, the Indian State will not identify itself with or be controlled by any particular religion. We hold that no one religion should be given preferential status, or unique distinction, that no one religion should be accorded special privileges in national life or intern....
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....y to profess, practice and propagate religion." 16. In S.R. Bommai v. Union of India 1994 (3) SCC 1, Sawant J. speaking for himself and Kuldeep Singh J. in para 145 of the judgment elaborately referred to several provisions of the Constitution including Articles 25, 26, 29, 30, 44 and 51A and declared that these provisions prohibit the State from identifying with any particular religion, sect or denomination. Drawing support from what jurists have said about the concept of secularism in the Indian Constitution, the Court explained the legal position thus: "148.One thing which prominently emerges from the above discussion on secularism under our Constitution is that whatever the attitude of the State towards the religions, religious sects and denominations, religion cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. This is evident from the provisions of the Constitution to which we have made reference above. The State's tolerance of religion or religions does not make it either a religious or a theocratic State. When the State allows citizens to practise and profess thei....
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....hat 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: "310.......If the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart. That is the constitutional injunction. None can say otherwise so long as this Constitution governs this country. Introducing religion into politics is to introduce an impermissible element into body politic and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status, at any rate, a less favourable position. This would be plainly antithetical to Articles 14 to 16, 25 and the entire constitutional scheme adumbrated hereinabove. Under our Constitution, no party or Organisation can simultan....
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....ng secular in character will not identify itself with any one of the religions or religious denominations. This necessarily implies that religion will not play any role in the governance of the country which must at all times be secular in nature. The elections to the State legislature or to the Parliament or for that matter or any other body in the State is a secular exercise just as the functions of the elected representatives must be secular in both outlook and practice. Suffice it to say that the Constitutional ethos forbids mixing of religions or religious considerations with the secular functions of the State. This necessarily implies that interpretation of any statute must not offend the fundamental mandate under the Constitution. An interpretation which has the effect of eroding or diluting the constitutional objective of keeping the State and its activities free from religious considerations, therefore, must be avoided. This Court has in several pronouncements ruled that while interpreting an enactment, the Courts should remain cognizant of the Constitutional goals and the purpose of the Act and interpret the provisions accordingly. 24. In Kedar Nath Vs. State of Bihar ....
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....and make fraternity a reality." 27. In Vipulbhai M. Chaudhary Vs. Gujarat Cooperative Milk Marketing Federation Ltd. and Ors. (2015) 8 SCC 1, this Court held that in cases where the legislation or bye-laws are silent in a given aspect, the Court will have to read the constitutional requirements into the enactment. The Court said: "46. In the background of the constitutional mandate, the question is not what the statute does say but what the statute must say. If the Act or the Rules or the bye-laws do not say what they should say in terms of the Constitution, it is the duty of the court to read the constitutional spirit and concept into the Acts." 28. There is thus ample authority for the proposition that while interpreting a legislative provision, the Courts must remain alive to the constitutional provisions and ethos and that interpretations that are in tune with such provisions and ethos ought to be preferred over others. Applying that principle to the case at hand, an interpretation that will have the effect of removing the religion or religious considerations from the secular character of the State or state activity ought to be preferred over an interpretation wh....
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....r and the certain from the uncertain. That so much should turn upon the meaning which we assign to a single word is reason enough to guard against an assumption that the issue which we confront is a matter entirely of grammar or of statutory interpretation. Underlying the surface of this case, are profound questions about the course of democracy in our country and the role of religion, race, caste, community and language in political discourse. Each of these traits or characteristics defines identity within the conception of nationhood and citizenship. Quibbles over the meaning of a word apart, the interpretation that will be adopted by the court will define the boundaries between electoral politics on the one hand and individual or collective features grounded in religion, race, caste, community and language on the other. 2 The reference before this Bench of seven Judges arises in this way : In Narayan Singh v. Sunderlal Patwa[(2003) 9 SCC 300], a Constitution Bench of this Court observed in its order dated 28 August 2002 that the High Court in that case had construed Section 123(3) "to mean that it will not be a corrupt practice when the voters belonging to some other....
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....eal was also referred on the question of the interpretation of Section 123(3). The order of reference dated 30 January 2014 explains the limited nature of the reference, thus : "4. Be that as it may, since one of the questions involved in the present appeal is already referred to a larger Bench of seven Judges, we think it appropriate to refer this appeal to a limited extent regarding interpretation of sub-section (3) of Section 123 of the 1951 Act to a larger Bench of seven Judges." The reference to seven Judges is limited to the interpretation of Section 123(3). B Representation of the People Act, 1951 4 Part VII of the Representation of the People Act, 1951 deals with corrupt practices and electoral offences. Chapter 1 of Part VII contains a provision, Section 123, which defines corrupt practices for the purposes of the Act. Since its amendment in 1961, Section 123(3)[ Section 123(3) was substituted by amending Act 40 of 1961, w.e.f. 20.9.1961], to the extent that is relevant to the present case, provides as follows : "123(3). The appeal by a candidate or his agent or by any other person with the consent of a candidate ....
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....ix years. Section 8(A) is in the following terms : "8(A). Disqualification on ground of corrupt practices - (1) The case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted, [as soon as may be within a period of three months from the date such order takes effect], by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period: Provided that the period for which any person may be disqualified under this sub-section shall in no case exceed six years from the date on which the order made in relation to him under section 99 takes effect; (2) Any person who stands disqualified under section 8A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), may, if the period of such disqualification has not expired, submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period; (3) Before giving his decision on any question mentioned in sub-section (1) or on any petition ....
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....ch of this Court in Tolaram Relumal v. State of Bombay[(1951) 1 SCR 158] where it was held as follows : "...It may be here observed that the provisions of section 18(1) are penal in nature and it is a well settled rule of construction of penal statutes that if two possible and reasonable constructions can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the Court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature. As pointed out by Lord Macmillan in London and North Eastern Railway Co. V. Berriman, "where penalties for infringement are imposed it is not legitimate to stretch the language of a rule, however beneficient its intention, beyond the fair and ordinary meaning of its language." (Id at p. 164) This principle has been consistently applied by this Court while construing the ambit of the expression 'corrupt practices'. The rule of strict interpretation has been adopted in Amolakchand Chhazed v. Bhagwandas[(1977) 3 SCC 566]. A Bench of three Judges of this Court held t....
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....under the insolvency law. Article 191(1)(c) refers to disqualifications of a person from getting elected to the State Legislature. The conditions for disqualification cannot be enlarged by importing to it any meaning other than permissible on a strict interpretation of expressions used therein for what we are dealing with is a case of disqualification. Whenever any disqualification is imposed naturally the right of a citizen is cut down and in that event a narrow interpretation is required. Therefore, the liberal view taken by the learned Judge to the contrary does not appear to be correct." (Id at p.87) In Bipinchandra Parshottamdas Patel (Vakil) v. State of Gujarat[(2003) 4 SCC 642], a Bench of three Judges of this Court restated the principle in the following observations : "31. It is trite that a law leading to disqualification to hold an office should be clear and unambiguous like a penal law. In the event a statute is not clear, recourse to strict interpretation must be made for construction thereof. In his classic work The Interpretation and Application of Statutes Read Dickerson states: "(1) The court will not extend the law beyond its meaning to take c....
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....ieve while the third part relates to the ground or basis reflected in the second. The first part of the provision postulates an appeal. The appeal could be : (i) by a candidate; or (ii) by the agent of a candidate; or (iii) by another person with the consent of a candidate; or (iv) by another person with the consent of the election agent of the candidate. Where the person making the appeal is not the candidate or his agent, consent of the candidate or his agent is mandated. 14 The appeal is to vote or refrain from voting for any person. The expression 'any person' is evidently a reference to a candidate contesting the election. The third part speaks of the basis of the appeal. The appeal is to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language. In the latter part of Section 123(3), the corrupt practices consist in the use of or appeal to religious symbols or national symbols such as the national flag or emblem for (i) the furtherance of the prospects of the election of that candidate or (ii) prejudicially affecting the election of any candidate. 15 Section 123(3) evinces a Parliam....
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.... whose favour votes are solicited or the person against whom there is an appeal for refraining from casting a ballot. 16 Section 123(3) uses the expression "on the ground of his religion...". There are two significant expressions here (besides 'his' which has been considered above). The first is 'the' and the second, "ground". The expression 'the' is a definite article used especially before a noun with a specifying or particularizing effect. 'The' is used as opposed to the indefinite or generalizing forces of the indefinite article 'a' or 'an'. The expression 'ground' was substituted in Section 123(3) in place of 'grounds', following the amendment of 1961. Read together, the words "the ground of his religion..." indicate that what the legislature has proscribed is an appeal to vote for a candidate or to refrain from voting for another candidate exclusively on the basis of the religion (or race, caste, community or language) of the candidate or a rival candidate. ' The ground' means solely or exclusively on the basis of the identified feature or circumstance. 17 Is there a valid rationale for Parliament, in adopting Section 123(3), to focus on an appeal to the religion of ....
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....characteristics such as of religion, race, caste and language. The integrity of the nation is based on a sense of common citizenship. While establishing that notion, the Constitution is not oblivious of history or to the real injustices which have been perpetrated against large segments of the population on grounds of religion, race, caste and language. The Indian state has no religion nor does the Constitution recognize any religion as a religion of the state. India is not a theocratic state but a secular nation in which there is a respect for and acceptance of the equality between religions. Yet, the Constitution does not display an indifference to issues of religion, caste or language. On the contrary, they are crucial to maintaining a stable balance in the governance of the nation. 19 Article 15(1) contains a prohibition against discrimination by the state against any citizen only on grounds of religion, race, caste, sex, place of birth or any of them. Yet, clause (4) makes it clear that this shall not prevent the state from making special provisions for the advancement of socially or educationally backward classes of the citizens or for the scheduled castes and scheduled tr....
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....342. Part XVII of the Constitution contains provisions for the official language of the Union and for regional languages. The eighth schedule of the Constitution contains a recognition of the diversity of India in terms of its spoken and written languages. 20 These, among other, provisions of the Constitution demonstrate that there is no wall of separation between the state on the one hand and religion, caste, language, race or community on the other. The Constitution is not oblivious to the history of discrimination against and the deprivation inflicted upon large segments of the population based on religion, caste and language. Religion, caste and language are as much a symbol of social discrimination imposed on large segments of our society on the basis of immutable characteristics as they are of a social mobilisation to answer centuries of injustice. They are part of the central theme of the Constitution to produce a just social order. Electoral politics in a democratic polity is about mobilisation. Social mobilisation is an integral element of the search for authority and legitimacy. Hence, it would be far- fetched to assume that in legislating to adopt Section 123(3), Parl....
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....appeal by a candidate to the voters not to vote for a rival candidate on the ground of his religion, race, caste, community or language is also an appeal on the ground of religion. If a candidate solicits votes on the ground that he is a Buddhist that would constitute an appeal on the ground of his religion. Similarly, if a candidate calls upon the voters not to vote for a rival candidate because he is a Christian, that constitutes an appeal on the ground of religion. However, the statute does not prohibit discussion, debate or dialogue during the course of an election campaign on issues pertaining to religion or on issues of caste, community, race or language. Discussion of matters relating to religion, caste, race, community or language which are of concern to the voters is not an appeal on those grounds. Caste, race, religion and language are matters of constitutional importance. The Constitution deals with them and contains provisions for the amelioration of disabilities and discrimination which was practiced on the basis of those features. These are matters of concern to voters especially where large segments of the population were deprived of basic human rights as a result of....
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....n, if it considers it necessary to do so. 23 The next aspect which needs to be carefully analysed is whether this interpretation is belied by the legislative history of the statutory provision. E. Legislative history 24Originally, the Representation of the People Act, 1951 distinguished between major corrupt practices (which were defined in Section 123) and minor corrupt practices (in Section 124). Among the minor corrupt practices, sub-section (5) of Section 124 contained the following : "124. Minor Corrupt practices.- (5) The systematic appeal to vote or refrain from voting on grounds of caste, race, community or religion or the use of; or appeal to, religious and national symbols, such as, the national flag and the national emblem, for the furtherance of the prospects of a candidate's election." The appeal to vote or to refrain from voting on grounds of caste, race community or religion was required to be "systematic", if an act were to constitute a corrupt practice. Systematic meant something more than a singular act. It required acts which were regular or repetitive. 25 In 1956, Parliament enacted an amending law[Act 27 of 1926] by ....
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.... was substituted by the word 'ground'; and (v) At the end of sub-section (3), after the words "for the furtherance of the prospects of the election of that candidate" the words "or for prejudicially affecting the election of any candidate" were introduced. As substituted after the amendment of 1961, sub- section (3) of Section 123 stood as follows: "(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. Simultaneously, with the substitution of Section 3, sub-Section (3A) was introduced into Section 123 to incorporate another corrupt practice in the following terms : "(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion....
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....paratists tendencies. The Notes on Clauses read thus : "Clauses 25, 26, 29 and 30 - For curbing communal and separatist tendencies in the country it is proposed to widen the scope of the corrupt practice mentioned in clause (3) of Section 123 of the 1951- Act (as in sub- clause (a) of clause 25), and to provide for a new corrupt practice (as in sub-clause (b) of clause 25) and a new electoral offence (as in clause (26) for the promotion of feelings of hatred and enmity no grounds of religion, race, caste, community or language. It is also proposed that conviction for this new offence will entail disqualification for membership of Parliament and of State Legislatures and also for voting at any election. This is proposed to be done by suitable amendments in section 139 and section 141 of the 1951-Act as in clauses 29 and 30 respectively." 30 The object of widening the ambit of sub-section (3) was achieved by the deletion of the expression "systematic". A systematic appeal would evidently have required proof at the trial of an election petition of the appeal on the grounds of religion being repetitive over a stretch of time. By deleting the expression "systematic", Parliam....
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....e for my opponent because he is a man who speaks this particular language, his own language. It is on that sole narrow point that the prohibition is sought to be made. ...But the problem is, are we going to allow a man to go to the electorate and ask for votes because he happens to speak a particular language or ask the electorate to refrain from voting for a particular person merely on the ground of his speaking a particular language or following a particular religion and so on? If not, we have to support this. ...But if you say that Bengali language in this area is being suppressed or the schools are being closed, as Shri Hynniewta was saying, because they bore a particular name, then, you are speaking not only to fight in an election but you are also really seeking to protect your fundamental rights, to preserve your own language and culture. That is a different matter. But, if you say, 'I am a Bengali, you are all Bengalis, vote for me', or 'I am an Assamese and so vote for me because you are Assamese-speaking men', I think, the entire House will deplore that a hopeless form of election propaganda. And, no progressive party will run an election on tha....
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....ll could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord". "A statute", said Sinha, C.J.I., "is the expression of the collective intention of the Legislature as a whole and any statement made by an individual, albeit a minister, of the intention and object of the Act, cannot be used to cut down the generality of the words used in the statute." In State of West Bengal v. Union of India[(1964) 1 SCR 371], Justice Sinha stated that a statute is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister, of the intention and objects of the Act cannot be used to cut down the generality of the words used in the statute. However, in Chiranjit Lal Chowdhuri v. Union of India[AIR 1951 SC 41], Justice Fazl Ali adverted to the parliamentary history including the statement of the Minister introducing a Bill as evidencing the circumstances which necessitated the passing of the legislation. Over a period of tim....
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....forced." The use of parliamentary debates as an aid to statutory interpretation has been noticed in several decisions of this Court["Theyssen Stahlunia GMBH v. Steel Authority of India, JT 1999(8) SC 66, P.105: (1999) 9 SCC 334: and Haldiram Bhujiawala v. Anand Kumar Deepak Kumar, AIR 2000 SC 1287, P.1291: (2000) 3 SCC 250, Mahalaxmi Sugar Mills Ltd. v. Union of India, AIR 2009 SC 792 paras 67 to 73 : (2008 6 SCALE 275]. 34 The speech made by the Law Minister when the Bill for the amendment of Section 123(3) was moved in Parliament was expressly noted in the judgment of Justice J.S. Verma (as the learned Chief Justice then was) in Dr RY Prabhoo v. PK Kunte[(1995) 7 SCALE 1]. 35 In Bennion on Statutory Interpretation[Indian Reprint Sixth Edition page 561], the need for a balance between the traditional view supporting the exclusion of the enacting history of a statute and the more realistic contemporary doctrine allowing its use as an aid to statutory interpretation has been brought out succinctly. This is evident from the following extract : "It is worth repeating that on a strict view the enacting history should be irrelevant, since the object of Parliament is to....
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....determine the extent to which the provision should be widened. Parliament would be mindful of the consequence of an unrestrained expansion of the ambit of Section 123(3). Parliament is entitled to perceive, in the best interest of democratic political discourse and bearing in mind the fundamental right to free speech and expression that what should be proscribed should only be an appeal to the religion, race, caste, community or language of the candidate or of a rival candidate. For, as we have seen earlier, if the provision is construed to apply to the religion of the voter, this would result in a situation where persons contesting an election would run the risk of engaging in a corrupt practice if the discourse during the course of a campaign dwells on injustices suffered by a segment of the population on the basis of caste, race, community or language. Parliament did not intend its amendment to lead to such a drastic consequence. In making that legislative judgment, Parliament cannot be faulted. The extent to which a legislative provision, particularly one of a quasi-criminal character, should be widened lies in the legislative wisdom of the enacting body. While expanding the wi....
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....om voting on the ground of the language of the contesting candidate. 38 In Kultar Singh v. Mukhtiar Singh[AIR 1965 SC 141 [Judgment delivered on 17 April 1964]], a Constitution Bench of this Court emphasized the salutary purpose underlying Section123(3) in the following observations : "7. The corrupt practice as prescribed by Section 123(3) undoubtedly constitutes a very healthy and salutary provision which is intended to serve the cause of secular democracy in this country. In order that the democratic process should thrive and succeed, it is of utmost importance that our elections to Parliament and the different legislative bodies must be free from the unhealthy influence of appeals to religion, race, caste, community or language. If these considerations are allowed any way in election campaigns, they would vitiate the secular atmosphere of democratic life, and so, Section 123(3) wisely provides a check on this undesirable development by providing that an appeal to any of these factors made in furtherance of the candidature of any candidate as therein prescribed would constitute a corrupt practice and would render the election of the said candidate void." The appel....
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....e can be no doubt that in this passage (Passage 3) Shambhu Maharaj had put forward an appeal to the electors not to vote for the Congress Party in the name of the religion." In our opinion, there is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name of religion. What Section 123(3) bars is that an appeal by a candidate or his agent or any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion i.e., the religion of the candidate". (emphasis supplied) The expression "his religion" was hence specifically construed to mean the religion of a candidate. 39 A decision of two learned judges of this Court in Ambika Sharan Singh v. Mahant Mahadeva and Giri[(1969) 3 SCC 492], involved a case where it was alleged that the appellant and his agents had campaigned on the basis that the appellant was a Rajput and the Rajput voters in certain villages should therefore vote for him. This Court, while affirming the judgment of the High Court holding that the appellant had committed a corrupt practice under Section 123(3) held that the evidence indicat....
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....r in which the word 'his' used therein can be construed. The expressions the appeal ...to vote or refrain from voting for any person on the ground of his religion, ... for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate" lead clearly to this conclusion. When the appeal is to vote on the ground of 'his' religion for the furtherance of the prospects of the election of that candidate, that appeal is made on the basis of the religion of the candidate for whom votes are solicited. On the other hand when the appeal is to refrain from voting for any person on the ground of 'his' religion for prejudicially affecting the election of any candidate, that appeal is based on the religion of the candidate whose election is sought to be prejudicially affected. It is thus clear that for soliciting votes for a candidate, the appeal prohibited is that which is made on the ground of religion of the candidate for whom the votes are sought; and when the appeal is to refrain from voting for any candidate, the prohibition is against an appeal on the ground of the religion of that other candidate. The f....
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....ting 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 for the furtherance of the prospects of the election of that candidate, that appeal is made on the basis of the religion of the candidate for whom votes are solicited. On the other hand, when the appeal is to refrain from voting for any person on the ground of "his" religion for prejudicially affecting the election of any candidate, that appeal is based on the religion of the candidate whose election is sought to be prejudicially affected. Thus, for soliciting votes for a candidate, the appeal prohibited is that which is made on the ground of religion of the candidate for whom the votes are sought; and when the appeal is to refrain from voting for any candidate, the prohibition is against an appeal on the ground of the religion of that other candidate. The first is a positive appeal and the second a negative appeal. Sub-section (3) clearly indicates the particular religion on the basis of which an appeal to vote or refrain from voting for any person is prohibited under sub....
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....litical party has espoused as part of its manifesto a religious cause, is totally untenable. This Court laid the law though in the context of the contesting candidates, that interpretation lends no licence to a political party to influence the electoral prospects on grounds of religion. In a secular democracy, like ours, mingling of religion with politics is unconstitutional, in other words a flagrant breach of constitutional features of secular democracy. It is, therefore, imperative that the religion and caste should not be introduced into politics by any political party, association or an individual and it is imperative to prevent religious and caste pollution of politics. Every political party, association of persons or individuals contesting election should abide by the constitutional ideals, the Constitution and the laws thereof. I also agree with my learned Brethren Sawant and Jeevan Reddy, JJ. in this behalf." (emphasis supplied) Justice B P Jeevan Reddy held that the reference in Section 123(3) must be construed to mean the religion of the candidate : "311. Consistent with the constitutional philosophy, sub-section (3) of Section 123 of the Representation of th....
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....cribed. Certain conduct is in addition prohibited by sub-section 3A, which is also a corrupt practice. Legislation involved drawing balances between different, and often conflicting values. Even when the values do not conflict, the legislating body has to determine what weight should be assigned to each value in its calculus. Parliament has made that determination and the duty of the court is to give effect to it. G.Conclusion 44The view which has been adopted by this Court on the interpretation of Section 123(3) in the cases noted earlier, commends itself for acceptance and there is no reason to deviate from it. The expression 'his' is used in the context of an appeal to vote for a candidate on the ground of the religion, race, caste, community or language of the candidate. Similarly, in the context of an appeal to refrain from voting on the ground of the religion, race, caste, community or language of a rival candidate, the expression 'his' refers to the rival candidate. The view is consistent with the plain and natural meaning of the statutory provision. While a strict construction of a quasi-criminal provision in the nature of an electoral practice is ma....
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....on which has held the field through judicial precedent over a length of time can be considered only in exceptional and compelling circumstances. This Court observed thus : "When it is urged that the view already taken by this Court should be reviewed and revised, it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. In reviewing and revising its earlier decision, this Court should ask itself whether in interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more rea....
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.... 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, articulated certain broad principles: (i) if the decision concerns an interpretation of the constitution, the bar for reconsideration might be lowered a bit; (ii) if the decision concerns the imposition of a tax, the bar may be lowered since the tax burden would affect a large section of the public; (iii) if the decision concerns the fundamental rights guaranteed by the constitution, then too the bar might be lowered; (iv) the court must be convinced that the decision is plainly erroneous and has a baneful effect on the public; (v) if the decision is with regard to a lis between two contending private parties it would not be advisable to revisit the judgment; (vi) power to reconsider is not unrestricted or unlimited, but is confined within narrow limits and must be exercised sparingly and judiciously; (vii) an earlier decision may be reconsidered if a material provision is overlooked or a fundamental assumptio....