NATIONAL LAW UNIVERSITY, DELHI

Course – LL.M. Batch 2017

Subject – Constitutional Law

Case Analysis
Name of Student: SUKRIT GARG Roll No.:

1. Name of Case: Abhiram Singh v. C. D. Commachen (2017) 2 S.C.C. 629

2. Composition of the Bench: The Supreme Court of India – Constitution Bench (7
judges)
Name of Judges: Dr. T S Thakur, C.J. and Madan B. Lokur, S. A. Bobde, Adarsh
Kumar Goel, Uday U. Lalit, Dr. D. Y. Chandrachud and L. Nageswara Rao, JJ.
3. Area of Law: Constitutional Law; Election Law
4. Brief Facts of the Case: In this case, a reference was made to the seven-judge bench
of the Supreme Court on the limited question of interpretation of S. 123 (3) of the
Representation of Peoples Act, 1951. The reference comes from three decisions of the
Supreme Court itself due to uncertainty about the correct interpretation of the provision.
In Abhiram Singh v. C D Commachen,1 a bench of three judges of the Supreme Court
observed that the content, scope and what constitutes a corrupt practice under S. 123
(3) or (3-A) of the Act of 1951 needs to be clearly and authoritatively laid down by a
larger bench.
In Narayan Singh v. Sunderlal Patwa,2 the Constitution Bench noticed an anomalous
situation arising out of an amendment to S. 123(3) of the Act in 1961. Prior to the
amendment, all that was required to constitute corrupt practice under S. 123 (3) was
proof of systematic appeal on grounds of religion, race, caste, community or language
and that the same was made for the furtherance of the prospects of a candidate’s
election.3 No reference was made to ‘candidate’s religion’ or the religion of his

1
(1996) 3 S.C.C. 665.
2
(2003) 9 S.C.C. 300.
3
Prior to the 1961 Amendment, S. 123 (3) of the Act read as follows:
“(3) 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.”
 opponent or that of the voter. However, after the amendment to the Act in 1961, the
term ‘systematic appeal’ was removed, the word ‘his’ was introduced as qualifying the
various grounds on which appeal cannot be made, and the phrase ‘or for prejudicially
affecting the election of any candidate’ was added at the end of the provision.4 As a
result a confusion ensued wherein the removal of ‘systematic appeal’ widened the
scope of the sub-section, whereas the introduction of the word ‘his’ seemingly had the
opposite effect. In a number of cases, the court had interpreted the word ‘his’ in a
restrictive sense, so as to mean that “so long as the candidate’s religion is not taken
recourse to, it would not be a corrupt practice within the meaning of S. 123(3)”.5
However, such an interpretation would be opposed to the observation in S R Bommai v.
Union of India,6 where Supreme Court held that the encroachment of religion in secular
activities is strictly prohibited. In light of the ambiguity explained above, the Supreme
Court referred the matter to a larger bench of seven judges.
Thereafter, when Abhiram Singh case7 was taken up by the Constitution bench, an order
was made to refer the appeal to a limited extent regarding interpretation of S. 123(3) of
the 1951 Act to a larger bench of seven judges.
5. Jurisdiction: The Supreme Court initially got jurisdiction over the matter by way of its
appellate jurisdiction, through a number of cases. Thereafter, upon reference by a
division bench and a constitution bench, the Chief Justice constituted the present seven
judge bench to consider the matter.
6. Question of law: The case involves a substantive question on the interpretation of a
provision of the Representation of Peoples’ Act, 1951. The question is substantial as it
has not been finally settled by the highest court, and still looms in ambiguity.
7. Reliance on relevant:
Statutes: Constitution of India, 1950
Indian Penal Code, 1860
Representation of Peoples’ Act, 1951

4
After the amendment of 1961 to the Act, S. 123(3), now reads 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.”
5
Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel, (1969) 1 SCC 455; Ramesh Yeshwant
Prabhoo v. Prabhakar Kashsinath Kunte, (1996) 1 SCC 130.
6
(1994) 3 SCC 1.
7
Abhiram Singh v. C. D. Commachen, (2014) 14 SCC 382.
 Decided Cases:
Jamuna P. Mukhariya v. Lachchi Ram (1955) 1 SCR 608
Syedna T S Saheb v. State of Bombay (1962) Supp (2) SCR 496
Kedar Nath Singh v. State of Bihar (1962) Supp (2) SCR 769
Kultar Singh v. Mukhtiar Singh (1964) 7 SCR 790
Ambika Sharan Singh v. Mahant Mahadev (1969) 3 SCC 492
Ziyauddin Bukhari v. Brijmohan Mehra (1976) 2 SCC 17
Indira Gandhi v. Raj Narain (1975) Supp SCC 1
S. Harcharan Singh v. S. Sajjan Singh (1985) 1 SCC 370
Union of India v. Raghubir Singh (1989) 2 SCC 754
State of Karnataka v. Appa Balu Ingale (1995) Supp (4) SCC 469
Vimal v. Bhaguji (1996) 9 SCC 351
Grasim Industries v. Collector of Customs (2002) 4 SCC 297
Balram Kumawat v. Union of India (2003) 7 SCC 628
M P Gopalkrishnan Nair v. State of Kerala (2005) 11 SCC 45
Badshah v. Urmila Badshah Godse (2014) 1 SCC 188
Vipulbhai Chaudhary v. Guj. Milk Coop. Fed (2015) 8 SCC 1
8. Legal issues for determination: The only issue for determination was the
interpretation of the word ‘his’ in S. 123(3) of the Representation of Peoples’ Act, 1951.
It was ambiguous whether the word ‘his’ qualified only the speaker or both the speaker
and the audience.
The court heard many counsel in this reference, and the leading submission by the
counsel for the appellant was that S. 123(3) must be interpreted literally. Such
restrictive interpretation was advocated in the light of the severity of the civil
consequences that follow from a corrupt practice. If a candidate is found guilty of a
corrupt practice, his election might be declared void under the provisions of S. 100 of
the Act of 1951, and he might also suffer disqualification for 6 years in accordance with
S. 8A read with S. 11A of the Act. The submission of the counsel also stated that a
broad interpretation of S. 123(3) might fall against Art 19(1)(a) of the Constitution.
9. Nature of Issues: The major issue is the question of interpretation of statutory
provision. The decision was divided on the question whether literal interpretation
should be applied to the provision or purposive interpretation.
10. Methodology of judging the issues involved: The majority view applied broad and
purposive interpretation to the provision in question, whereas the minority view applied
literal interpretation to it.
11. Opinion of the Court: The opinion of the Court is divided. The majority opinion was
given by Madan B. Lokur, J., who delivered it for Nageswara Rao, J. and himself.
Thakur, C.J., and Bobde, J. gave separate concurring judgments to the majority view.
The minority judgment was given by Chandrachud, J. for Goel and Lalit, JJ. and
himself.
12. Reasoning:
Majority: Madan B Lokur, J. gave purposive interpretation to the provision in question.
He observed that the Act of 1951 is a statute that enables us to strengthen and cherish
our democratic ideals. To interpret it in a manner which assists candidates to an election
rather than the elector would be going against public interest. Also, the purposive
interpretation is in line with the various amendments to the Act, all of which aimed to
widen the scope of corrupt practices to curb communal, fissiparous and separatist
tendencies. Responsiveness to change in social reality is the life of law, and hence
purposive interpretation also ensures social context adjudication.
Dr. T S Thakur, C.J., in his concurring judgment, referred to the removal of the term
“systematic” from the provision by an amendment in 1961. Prior to the amendment, all
that was required to prove was that the appeal was systematic and was made for the
furtherance of the prospects of a candidate’s election. After the amendment, however,
the requirement of appeal being ‘systematic’ was also removed, and in effect even a
single appeal on the ground of religion, race, caste, community or language was be
sufficient to constitute a corrupt practice. Thus, he utilised the legislative history of the
provision to prove that it was being consistently expanded by the legislature. He
observed that secularism is one of the basic features of the Constitution, and if two
constructions of a statute are possible, on that promotes the Constitutional objective
ought to be preferred over the other one that does not do so. The constitutional
objectives, both of secularism and democracy, are being preserved by the purposive
interpretation of the statute.
S. A. Bobde, J. accepted the grounds of purposive interpretation for social context
adjudication so as to support the interpretation of the word ‘his’ to include both the
candidate and the voters. However, he is of the view that such a construction may also
be warranted by textual interpretation of the provision. He observes that one of the
 manner of reading the provision (which he holds to be the correct manner) is to view
the word ‘his’ to be qualifying all the categories of persons preceding it. Such an
interpretation would also be in consonance with the legislative intent behind the
provision.
Minority: Dr. D. Y. Chandrachud, J. observed that election petitions alleging corrupt
practices have a quasi-criminal nature, and hence, they must be construed strictly. He
further observed that caste, community, religion, language, etc are markers of identity
of the citizens, which have acquired visible significance after centuries of structural and
institutional discrimination. But now, with the advent of democracy, it allowed the
oppressed to organise around that site of their prior oppression and use that to gain
political power. To prohibit contestants from speaking of these ‘legitimate concerns of
citizens’ is to reduce democracy to an abstraction. Thus, the word ‘his’ qualifies only
the candidates or their agents or any other person with the consent of a candidate or his
election agent. It does not qualify the voter.
13. Ratio of the Majority Opinion: The ratio decidendi of the Court seems to be the
principle of purposive interpretation so as to suit the social context, and to achieve the
aspirations of the Constitution. Upholding the secular character of the State, and
acknowledging the sanctity of the election process in our democracy, the majority view
interpreted the word ‘his’ in S. 123(3) of the Act of 1951 in a manner that any appeal,
by the candidate or his election agent, on the grounds mentioned in the section, whether
they relate to the candidate or the voter, would constitute ‘corrupt practice’.
14. New rulings or principles: The majority opinion removed the ambiguity relating to
the interpretation of S. 123(3). Now, any appeal in the name of religion, race, caste,
community or language is impermissible under the Act, regardless whether the appeal
was made in the name of the candidate’s religion or the religion of his election agent or
that of the opponents or that of the voters. Such an appeal would constitute a corrupt
practice sufficient to annul the election.
15. Present Status of the Majority Ruling: The judgment, in its short life has been
referred in a number of cases.8 However, the references made were not regarding the
interpretation of S. 123(3). The rationale of the case has been used by the Court to
support verdicts where purposive and harmonious interpretations were given to statutes.

8
Eera v. State (Govt of NCT of Delhi), 2017 SCC Online SC 787; Independent Thought v. Union of India, 2017 SCC
Online SC 1222.
 16. Aim of the Majority View: The aim of the majority decision was to establish a just
political order. The decision has been given keeping in mind the techniques of
manipulation used by candidates participating in elections to garner votes for their
cause. It aims at purging the evil of separatist appeals used by the candidates to
influence the voting pattern in elections.
17. Remarks: The present case falls in the category of cases which decide the destiny of a
nation by one judicial vote.9 The Supreme Court involved itself in the interpretation of
the word ‘his’ in S. 123(3) of the Representation of Peoples’ Act, 1951, which had a
direct impact on the scope of corrupt practices in the electoral process.
Value of the two opinions: Both the majority and minority views have their own merits
and demerits. The majority opinion decided the issue keeping in mind the present social
and political conditions of the nation. It applied purposive interpretation to the word so
as to expand its scope to put a stop on the communal, fissiparous and separatist appeals
made by the political parties to the masses while trying to garner votes for themselves.
Such a view is necessary for maintaining the secular democratic structure of our
country, and also to counter the divisive elements in our diverse nation. It is also in line
of securing and promoting the “unity and integrity of the Nation” as promised by the
Preamble to our Constitution.
The minority opinion, on the other hand, adopts a restrictive view, and holds that the
word ‘his’ applies only to the candidates and not to the audience. Though the minority
opinion has been perfectly reasoned, it ignored the social context in which the judgment
would be applicable. In spite of its logical infallibility, the restrictive view would create
a situation where the political parties would freely operate (with the seal of the Supreme
Court) to create social divisions based on language, caste, religion and community
based identities of people.
Discourse on identity politics: The two views also prescribe to the two sides of the
identity-dialogue. The majority opinion views the concerns of religion, language, caste
and community as ‘messy markers of personal identity’, which must be left at the door
before entering the public sphere. The minority view, on the other hand, looks at the
enumerated concerns as ‘legitimate concerns of citizens’. According to the minority
opinion, democracy is a way of ameliorating the wrongs done on grounds of identity

9
Sanjay Hegde, Reading between the lines, The Hindu (Jan. 6, 2017),
http://www.thehindu.com/opinion/lead/Reading-between-the-lines/article16993971.ece (Last visited on Nov.
9, 2017).
 for centuries, and hence, appeals based on such identities must not be prohibited.
The majority view seems to have ignored the point stressed upon by the minority
opinion. This has lead Noah Feldman into believing that “the decision delivered a gift
to the ruling Hindu nationalist Bharatiya Janata Party at the expense of India's
minority faiths and castes.”10 Avani Bansal counters the above statement saying that
the decision does not give rise to discrimination against the minorities. She rightfully
observes: “Given the huge margin by which the ruling party BJP has won in the 2014
elections, if anything, this judgment can be seen as a way to check on BJP to use its
power blatantly in appealing on grounds of religion in the upcoming elections.”11
It must also be noted that people are not expected to leave their identity altogether. The
Constitution of India acknowledges and identifies the ‘markers of identity of the
people’ and makes effort to provide for them. Constituencies and seats can be reserved
based on identities. States have been carved out on the basis of linguistic identities.
Thus, it is only the electoral process that has to be kept away from identity politics so
as to make the mobilisation of masses ‘truly democratic, healthy and constitutional’.12
Conclusion: Despite the logical validity of both the opinions, the majority view appears
to be the better judgment. Keeping in mind the social and political conditions of the
nation, a tight noose is necessary on the otherwise loosely regulated political parties.
The judgment provides a wider reach to the already weak election laws, and also
ensures that the unity of our country is not harmed.

10
Noah Feldman, India’s High Court Favours Nationalism Over Democracy, Bloomberg View (Jan. 8, 2017),
https://www.bloomberg.com/view/articles/2017-01-08/india-s-high-court-favors-nationalism-over-democracy
(Last visited on Nov. 9, 2017).
11
Avani Bansal, Indian Supreme Court’s Judgment On Mixing Religion And Poliics: A Reply To Prof. Noah
Feldman, LiveLaw (Jan. 25, 2017), http://www.livelaw.in/indian-supreme-courts-judgment-mixing-religion-
politics-reply-noah-feldman/ (Last visited on Nov. 9, 2017).
12
M. P. Raju, Does Supreme Court see Secularism and Identity Politics as incompatible?, The Wire (Feb. 16,
2017), https://thewire.in/109269/secularism-hindutva-identity-politics/ (Last visited on Nov. 9, 2017).