ABHIRAM SINGH versus C.D. COMMACHEN (DEAD) BY LRS. & ORS.

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 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 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 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 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 -I ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. [DR. D. Y. CHANDRACHUD, J.] only be fostered by protecting the right of citizens freely to engage in 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 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 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 have adopted is that first and foremost, 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 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 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.

23. The next aspect which needs to be carefully analysed is whether this interpretation is belied by the legislative history of the statutory provision. Legislative history

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: c c [20 l 7] l S.C.R. "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 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.

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 : "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 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 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 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 "[Act58oJ'I958] ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. [DR. D. Y. CHANDRACHUD, J.]

27. In 1961, sub-section (3) of Section 123 was substituted and 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: (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 (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 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 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 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 of the election of that candidate or for prejudicially affecting the election of any candidate." c

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 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 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 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 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 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 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: ABHlRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. [DR. D. Y. CHANDRACHUD, J.] ·"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 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 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", 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 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 election ofany candidate. While widening the ambit of the 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: "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 c c (2017] I S.C.R. 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. 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 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 Hindi, I speak Garhwali, or 1 speak 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 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 ncit only to fight in an election but you are also really seeking to protec~ 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. ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. (DR. D. Y. CHANDRACHUD, J.] And, no progressive panywill run an election on that line. Similarly, 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 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 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 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 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.

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 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 af Andhra 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 c c [20 l 7] l S.C.R. "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 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 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 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 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 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: "(1964) I SCR371 "AIR 1951 SC41 "AIR 1993 SC 477 "(2013) 6 sec IJ " ( 1972) 1 sec 298 "AIR 1976 SC 879 "AIR 1981SC1922 " ( 1999) 4 sec 306 ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. [DR. D. Y. CHANDRACHUD, J.] " … (iii) i'v!odern 1re11d.-The school of thought that limited but 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 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 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 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 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".

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: '" .. 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 ~ Indian Reprint Sixth Edition page 561 c c "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' 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 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 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, 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" 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 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 ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. [DR. D. Y. CHANDRACHUD, J.] 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 width of the erstwhile provision, Parliament was legitimately entitled to define its boundaries. The incorporation of the word "his" achieves just that purpose. 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 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 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 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) c c [2017) 1 S.C.R. 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". 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 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.

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 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. 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 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 "AIR 1965 SC 141 [Judgment delivered on 17 April 1964] ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. [DR. D. Y. CHANDRACHUD, J.] the Constitution Bench was whether these speeches amounted to an 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 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 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 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 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 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: c "25. One other ground given by the High Court is that "there 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 Paity in the name of the religion." In our opinion, there is no bar to a candidate or his supporters appealing "(1969)1SCC455 c (2017] 1 S.C.R. 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", involved a case where 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 11imself at 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 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) 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 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 "(1976)2 sec 11 ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. [DR. D. Y. CHANDRACHUD, J.] represent Muslims. Nothing could be a clearer denunciation of 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 Kumte38, the provisions of Section 123(3) were construed and it was 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 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 … 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 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 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 c 25:2 The same view was adopted in Manohar Joshi v. Nitin Bhaurao Patil39 . 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 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' 0 t Kumbharwada on 18-2-1990 and Khed Galli on 19-2-1990. These further facts c are unnecessary in the context because the maximum impact 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 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 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." 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 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 "' (2005) s sec 46 ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. [DR. D. Y. CHANDRACHUD, J.] furtherance of the prospects of the election of that candidate, that 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 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 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 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 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 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 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 c c [201 7] 1 S.C.R. 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 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: "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 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 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 practice. Even a single instance of such a nature is enough ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. [DR. D. Y. CHANDRACHUD, J.] to vitiate the election of the candidate. Similarly, sub-section (3-A) of Section 123 provides that "promotion of, or attempt to promote, feelings of enmity or hatred between different classes of citizens 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 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 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) 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 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 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 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 c (2017] 1 S.C.R. Conclusion c

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 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 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 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 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). 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 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 .ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS, & ORS. [DR. D. Y. CHANDRACHUD, J.] brought about by a parliamentary amendment stating in clear terms that '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 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 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 Cou1t to introduce and maintain an element of 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 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 of the said view is fully justified. It is not possible or 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 c c [20 l 7] l S.C.R. 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 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 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 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 India44, this Court has considered the circumstances in which a reconsideration of an earlier decision can be sought. 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 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) 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 "(20l6J s sec 1 ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ·-"' ORS. [DR. D. Y. CHANDRACHUD, J.] 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) 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 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 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: "976 …. I would like to add one more, as the tenth. Once this Court has addressed an issue on a 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 …. ". 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 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 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" c c (2017] I S.C.R. 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.

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 have been altered in the house of Indian democracy. There is merit in ensuring a continuity of judicial 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 and the working of a democratic constitution may suffer from imperfections. But these imperfections cannot be attended to by an exercise of judicial 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 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 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. Kalpana K. Tripathy Referred question answered.