Abhiram Singh v. C.D. Commachen (dead) By Lrs. & Ors, (1996) 3 SCC 665, (2014) 14 SCC 38

Introduction

• The present case is all encircle round the fair election and campaigning process. The main aim of The Representation of the People Act, 1951, is to maintain the purity and sanity of the electoral process, provide code of conduct for election and enlisted various “corrupt and unlawful practices” like appeals on credit identity markers – like religion, caste, language, community, which if proved then according to section 100 of the act will lead to disqualification of candidate from election. It is one of the landmark judgements of supreme court, as in this two cases Abhiram Singh v. C.D. Commachen (dead) By Lrs. & Ors and Narayan Singh v. Sunderlal Patwa Were merge together as one in the court and the judgment was passed by the bench of 7 judges.

Facts of the case

• This case come in force when a a BJP candidate, Abhiram Singh contesting from Santacruz constituency in Mumbai in 1990, was accused of committing corrupt practices by appealing to the voters on the ground of religion by Commachen in the Bombay High Court. Then the bench of 3 judges on April 16, 1992, communicated the view, scope and what can include under corrupt practice under sub-section (3) or (3A) of Representation of the People Act, 1951”.
• In Narayan Singh v. Sunderlal Patwa, the approval of Sunderlal Patwa from the Bhojpur Constituency no. 245 in the Madhya Pradesh to the Legislative Assembly of 1993, was under test of the ground of corrupt practice, that the candidate infringes the section 123(3) of representation of people act by using religion in between of election. In the view of certain observations.[i]
•  while the five-judge bench was hearing the case of Abhiram Singh case on January 30, it was learned that similar issue was brought up in the political race appeal recorded by one Narayan Singh against BJP pioneer Sunderlal Patwa and another Constitution Bench of five judges of the supreme Court has transfer to a bigger bench of seven judges. Then matter put before the Supreme Court which then had to determine the scope of Section 123 of the Representation of the People Act, 1951.

Issue raised

• Whether the words “his religion” in Section 123(3) of the Representation of the People Act, 1951, has restricted the degree to just incorporate the religion of the candidate, or his agent, or any other person with the consent of the candidate or have extended to incorporate the religion of the voters as well.
• Whether the Section 123(3) of Representation of the People Act, 1951, infringes Article 19(1) A of the Indian Constitution which protect the privilege to the right to speak freely and it restricts the candidate’s political speech to some measure.

Contentions of the petitioner

• Of course, the word “his” used in subsection (3) must be meaningful and cannot be omitted with the word “any” in order to carry any appeal in  a reference to religion. The belief that underlies a person’s willingness to vote or not must be the belief of the candidate they vote for or not.
•  This is due to the simple language of part (3), which is the main way  the word “his” can be defined or created. When a call to vote is made, the call is established based on the candidate’s faith, with “his” belief in the hope of supporting the candidate’s election.  
• 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 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.

Contentions of the respondent

• On the other hand, when applying the effect of the election of candidates by not voting for anyone because of their “own” religion; It is a demand based on a candidate’s belief in the expectation that his choice will be correct. So it is clear that the unimplied alliance (call) to vote for the rising star is based on the beliefs of other candidates seeking votes; where the organization will not be profitable.
• 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 the case of the rising star’s decision, the prohibition of cooperation based on the beliefs of other rising stars. Clause (3) is vague, denoting certain beliefs that are prohibited from voting or not being ignited to vote in clause (3).
• The mischief sought to be suppressed by sub-sections (2), (3) and (3A) of Section 123 of the Act, 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 to be exploited.

Judgement

• The 7-Judge Bench delivered a landmark judement, where by a majority of 4:3, the majority Judgment delivered by Justice Lokur with concurring Judgments by Chief Justice T.S. Thakur and Justice Bobde, decided that an appeal on the grounds of religion – be it the candidate, the agent of the candidate, any person with the consent of the candidate, or even the religion of the voters would amount to a corrupt practice. The majority in its Judgment gave a wide exposer to the words of Section 123 of the Representation of the People Act, 1951 and has expanded its boundaries to justify any appeal on the grounds of religion, caste, language or race.
• In this case where the interpretation of the word ‘his’ under Section 123(3) of the Representation of the People Act, 1951, T.S. Thakur, CJ and Madan B. Lokur, L.Nageswar Rao and S.A. Bobde, JJ, giving the majority view, said that the sum total of Section 123 (3) even after amendment is that 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 any of those considerations, the same would constitute a corrupt practice. It was held that for maintaining the purity of the electoral process and not violating it, sub-section (3) of Section 123 of the Represeantation of the People Act, 1951 must be given a broad interpretation thereby bringing within the cover 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 rules of the election of that candidate or for unlawfully 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 electoral.[ii]
•  Dr. D.Y. Chandrachud, Adarsh K. Goel and U.U. Lalit, JJ on the other hand were of the opinion that the ‘his’ in Section 123(3) of RoP Act does not refer to the religion, race, caste, community or language of the voter. ‘His’ is to be read as referring to the religion, race, caste, community or language of the candidate in whose favour a vote is for or that of another candidate against whom there is an appeal to stop from voting. It was said that the actual open up of democracy and the working of a democratic constitution may suffer from imperfections but these flaws cannot be sort by an exercise of judicial redrafting of a legislative provision.[iii]

Conclusion 

The case of Abhiram Singh v. C.D. Commachen (dead) By Lrs. & Ors is one of the land mark judgements of supreme court as this case was merged with another case of Supreme court where the issue is regarding the protection of two statute i.e.  section 123 of Representation of the People Act, 1951 and article 19 of Indian constitution. This judgement had widened the scope of section 123 in matter of religion, caste, gender etc.

The bench of 7 judges with majority of 4:3 defined the meaning of ’his’.

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[i] SCO.in

[ii] https://indiankanoon.org/doc/85515763

[iii] 2017 SCC Online SC 9,

This article is written by Y Sakshi Choudhary of Guru Ghasidas Central University, an intern under Legal Vidhiya