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NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL
COMMON LAW METHOD

FIRST TRIMESTER
PROJECT WORK
Analysis of
ABHIRAM SINGH
VERSUS
C.D. COMMACHEN (DEAD) BY LRS. & ORS.
CIVIL NO. 37 OF 1992
SUBMITTED BY: SUBMITTED TO:

SAAVNI KAMATH PROF. (DR).GHAYUR ALAM
BALLB (HONS) 92
Contents
1. DATE OF DECISION .......................................................................................................................... 2
2. CORAM/ BENCH OF JUDGES ........................................................................................................... 2
3. MATERIAL FACTS OF THE CASE ....................................................................................................... 2
4. QUESTIONS OF LAW INVOLVED ...................................................................................................... 3
 The question for determination in this case was whether section 123(3) of The
Representation of Peoples Act, 1951 prohibits appeal to vote or refrain from voting any person
based only on religion, race, caste, community of that person or whether an appeal to vote or
refrain from voting in the name of religion, race, caste, community or language is altogether
prohibited by this provision. ........................................................................................................... 3
 Whether there should be purposive interpretation or literal interpretation of Section 123
of The Representation of Peoples Act, 1951. ................................................................................. 3
 Is Seeking Vote in the Name of Religion a “Corrupt” Practice? .............................................. 3
5. ANSWERS TO THESE QUESTIONS .................................................................................................... 3
6. OPINIONS DELIVERED ..................................................................................................................... 4
7. RATIO DECEDENDI........................................................................................................................... 5
8. OBITER DICTA .................................................................................................................................. 5
9. CONCLUSION ................................................................................................................................... 5
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1. DATE OF DECISION
Supreme Court of India pronounced its judgement on the instant case on 02.01.2017.
2. CORAM/ BENCH OF JUDGES

A Constitutional bench of 7 judges, consisting of former Chief Justice T.S.Thakur,
Justice.S.A Bobde, Justice MadanB.Lokur, Justice L.Nageshwar Rao, Justice D Y
Chandrachud, Justice .J. Adarsh Kumar Goel and Justice Uday Umesh Lalit, was set up
to decide the case at hand.
3. MATERIAL FACTS OF THE CASE

1. The bench was dealing with the appeal filed in 1992 by BJP leader Abhiram Singh,
whose election to the 1990 Maharashtra Assembly was set aside in 1991 by the
Bombay High Court on the ground that he had appealed for votes on the basis of the
Hindu religion.
2. While hearing the appeal against the decision of the Bombay High Court, a bench of
three judges of the Supreme Court expressed the view that the content, scope and
what constitutes a corrupt practice under sub-sections (3) or (3A) of Section 123 of
Representation of Peoples Act needs to be clearly and authoritatively laid down by a
larger bench of five judges of the Supreme Court to avoid a miscarriage of justice in
interpreting a “corrupt practice.”
3. Subsequently, the five judge bench was constituted. While the five judge bench was
hearing this matter, it was informed that an identical issue was raised in the election
petition of one Narayan Singh against BJP leader Sunderlal Patwa and the apex
court’s another Constitution Bench of five judges has referred a larger bench of seven
judges.
4. The entire controversy was hinged on the interpretation of the word “his”. This
judgement by the Court is also a testimony of the fact that language is an imperfect
medium of conveying thoughts.
5. The bench took into consideration the fact that Section (123) (3) of the Act has
undergone several statutory changes over the years.
6. In 1961, sub-section (3) of Section (123) of the Act was substituted and a new
provision subsection (3A) was introduced. Among the major changes brought about
by the substituted sub-section (3) were the following:
i. The expression “systematic appeal” was altered to simply “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, caste,
race, community”
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iii. In addition to religion, race, caste, community, a reference to “language” was
added.
iv. The words “grounds” were substituted by the word “ground”.
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, 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.”
4. QUESTIONS OF LAW INVOLVED

 The question for determination in this case was whether section 123(3) of The
Representation of Peoples Act, 1951 prohibits appeal to vote or refrain from voting any
person based only on religion, race, caste, community of that person or whether an appeal
to vote or refrain from voting in the name of religion, race, caste, community or language
is altogether prohibited by this provision.
 Whether there should be purposive interpretation or literal interpretation of Section 123
of The Representation of Peoples Act, 1951.
 Is Seeking Vote in the Name of Religion a “Corrupt” Practice?
5. ANSWERS TO THESE QUESTIONS

 Section 123 (3) of the Representation of Peoples Act refers only to the religion of the
candidate or any other person with the consent of the candidate or the elector.
Therefore, it is a general prohibition on the use of religion or any other communal or
sectarian value in the electoral arena. The pronoun ‘his’ also refers to the social,
linguistic and religious identity of the voter. Former Chief Justice Thakur stated in his
separate judgement “Elections to the State Legislature or to the Parliament or for that
matter any body in the State is a secular exercise just as the functions of the elected
representatives must be secular in both outlook and practice.” In conclusion the
provision prohibits appeal to vote or refrain from voting in the name of religion, race,
caste, community or language altogether.
 The lead judgement of the majority relies upon the principle of purposive interpretation
of statutes to hold that “the Representation of the People Act, 1951 is a statute enables
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us to cherish and strengthen our democratic ideals. To interpret it in a manner that
assists candidates to an election rather than the elector or the electorate in a vast
democracy like ours would really be going against public interest.” Justice
Chandrachud has highlighted how purposive interpretation is only possible if there is
only one possible theory for such interpretation and the Court must not while
interpreting a provision in a purposive manner, choose a particular theory of purposive
interpretation when there are sound constitutional principles for a purposive theory
which militates against the one preferred by the Court. But Former Chief Justice T.S
Thakur forming part of the majority verdict in his concurring opinion has found only
theory of purposive interpretation which is preferable under the Indian Constitution.
 The Court in the judgement held that an appeal for votes during election on the basis of
religion, race, caste, community or language, even that of the electorate, will amount to
a ‘corrupt practice’ and call for disqualification of the candidate.
6. OPINIONS DELIVERED
The majority verdict was delivered by a total of four judges: Justice Madan Lokur, Justice
Nageshwar Rao, Justice A.S. Bobde and former Chief Justice T.S.Thakur. Using a
purposive interpretation, the majority held that the expression ‘his religion’ refers to the
religion of,
“(i) Any candidate or (ii) his agent or (iii) any other person making the appeal with the
consent of the candidate or (iv) the elector.” The former Chief Justice imposed a secular
framework to limit the freedom of political speech by noting that in interpreting
Section123 (3) of The Representation of Peoples Act “one of the two interpretations
ought to be preferred by the Court keeping in view of the constitutional ethos and the
secular character of our polity.”
Though a part of the majority, Justice Bobde however, relied on literal interpretation and
not purposive interpretation of the Act for arriving at the decision. Justice Bobde
interestingly argued that the pronoun ‘his’ refers to not only the candidates contesting the
election but even voters and therefore the provision literally also prohibits appeals to
religion, race, caste or language altogether.
Justice D.Y.Chandrachud, Justice A.K.Goel and Justice U.U.Lalit dissented from the
majority view. Using literal interpretation the minority held that the expression ‘his
religion’ must “necessarily qualify what precedes; namely, the religion of the candidate
in whose favour a vote is sought or that of another candidate against whom there is an
appeal to refrain from voting.” They further held that “social mobilisation is an integral
element of the search for authority and legitimacy. Hence it would be far-fetched to
assume that in legislating to adopt Section 123(3), Parliament intended to obliterate or
outlaw references to religion, caste, race, community or language in the hurly burly of
the great festival of democracy.” The dissenting judges then added that such an
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interference by court almost amounted to judicial redrafting. They said prohibiting
candidates from articulating issues affecting voters reduced democracy to an abstraction.
7. RATIO DECEDENDI
In arriving at the decision, the Supreme Court relied on previous cases in which the
factual matrix of the cases were similar.
The interpretation of (3) of Section 123 was in consonance with the purpose of the
Representation of Peoples Act that is “maintaining the purity of the electoral process
and not vitiating it.”
The majority, headed by Chief Justice T.S.Thakur held that,
“Election is a secular exercise and therefore a process should be followed ….the

relationship between man and god is an individual choice and State should keep this in
mind”
8. OBITER DICTA
On October 25th the seven judge Constitution Bench of the Supreme Court which was
hearing a slew of petitions relating to decisions and questions on electoral malpractices
arising out of its earlier judgements said for now it will not touch its 1995 definition of
“Hindutva is a way of life and not a religion” and also not ban its use during elections.
If it would be considered that Hinduism is not a religion but a way of life then asking for
votes in the name of Hinduism is not a corrupt practice. This question still stands.
9. CONCLUSION
The seven judges bench by a majority of 4:3 decided that this provision prohibits appeal
to vote or refrain from voting in the name of religion, caste, community or language and
that it should not be given a narrow interpretation by confining the import of the
provisions to appeals to vote or refrain from voting any person based only on the religion,
race, caste, community or language of that person only.
The view which has been adopted by the Supreme Court on the interpretation of Section
123(3) is that, the expression “his” is used in the context of an appeal to vote for the
candidate on the ground of religion, race, caste, community or language of the candidate.
Similarly, in the 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
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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 process is mandated, the legislative history also supports the view.

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NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

COMMON LAW METHOD

SUBMITTED BY: SUBMITTED TO:

2. CORAM/ BENCH OF JUDGES

3. MATERIAL FACTS OF THE CASE

4. QUESTIONS OF LAW INVOLVED

5. ANSWERS TO THESE QUESTIONS

“Election is a secular exercise and therefore a process should be followed ….the

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