ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS & Ors.

#4. While interpreting statutes, wherever the language is clear, the intention of the legislature must be gathered from the langnage used and support from extraneous sources should be avoided. The language that is used in Section 123 (3) of the Act intends to include the voter and the pronoun "his" refers to the voter in addition to the candidate, his electio11 agent etc. Also because the i·ntendment and the purpose of the statute is to prevent an appeal to votes on the ground of religion. It is an unreasonable shrinkage to hold that only an appeal referring to the religion of the candidate who made the appeal is prohibited and not an appeal which refers to religion of the voter. It is quite conceivable that a candidate makes an appeal on the ground of religion but leaves out any reference to bis religion and only refers A B c D E F G H 168 A B c D E F SUPREME COURT REPORTS [2017] 1 S.C.R. to religion of the voter. This interpretation is wholesome and leaves no scope for any sectarian caste or language based appeal and is best suited to bring out the intendment of the provision. There is no ·doubt that the section on textual and contextual interp~etation proscribes a reference to either. [Para 4) [219-G H; 220-A-DJ Grasim Industries v. Collector of Customs, Bombay [2002) 2 SCR 945 : 2002 (4) SCC 297 ~ relied on.

#5. It is an overriding duty of the Court while interpreting the provision of a statute that the intention of the legislature is not frustrated and any doubt or ambiguity must be resolved by recourse to the rules of purposive construction. It seems clear that the mens or sententia legis of the Parliament in using the pronoun "his" was to prohibit an appeal made on the ground of the voter's religion. Parliamentary intent therefore, was to clearly proscribe appeals based on sectarian, linguistic or caste. considerations; to infuse a modicum of oneness, transcending such barriers and to borrow Tagore's phrase transcend the fragmented "narrow domestic walls" and send out the message that regardless of these distinctions voters were free to choose the candidate best suited to represent them. Applying the above principles, there is no doubt that Parliament intended an appeal for votes on the ground of religion is not permissible whether the appeal is made on the ground of the religion of the candidate etc. or of the voter. Accordingly, the words "his religion" must be construed as referring to all the categories of persons [221-C-E; 222-B-C, preceding these words. [Paras 5, 7 and 8) G-H] Bairam Kumawat v. Union of India [2003) 3 Suppl. SCR 24 : 2003 (7) SCC 628 - Craies on Statute Law 7th Edu. Page 531 - to. relied on. referred G MINORITY VIEW: Pe'r Dr. D. Y. Chandrachud, J. (for himself and for Adarsh Kumar Goel and Uday Umesh Lalit, JJ.) :

#1. Election petitions alleging corrupt practices have a quasi-criminal character. Where a statutory provision implicates penal consequences or consequences of a quasi-criminal H ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. 169 character, a strict construction of the words nsed by the legislature mnst be adopted. The standard of proof is hence mnch higher than a preponderance of probabilities which operates in civil trials. The standard of proof in an election trial veers close to that which guides a crimiual trial. 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. [Paras 11, 12 and 44) [227-F; 228-D-E; 256-C] Tolaram Relumal v. State of Bombay (1951) 1 SCR 158 - followed. Amolakchand Chhazed v. Bhagwandas (1977) 3 sec 566; Baldev Singh Mann v. Gurcharan Singh (MLA) [1996) 2 SCR 99 : (1996) 2 SCC 743; Thampanoor Ravi v. Charupara Ravi (1999) 2 Suppl. SCR 419 : (1999) 8 SCC 74; Bipinchandrq Parshouamdas Patel . (Vakil) v. State of Gujarat (2003) 3 SCR 533 : (2003) 4 SCC 642; S Subra111a11ia111 Balaji v. State of Tamil Nadu (2013) 9 sec 659 - relied on.

2.1 Essentially, Section 123(3) can be understood by dividing its provisions into three parts. The firs.t part describes the person making the appeal, the second part describes what the appeal seeks to achieve while the third part relates to the ground or basis reflected in the second. The first part of the provision postulates an appeal. The appeal could be : (i) by a candidate; or (Ii) by the agent of a candidate; or (iii) by another person with the consent of a candidate; or (iv) by another person with the consent of the' election agent of the candidate. Where the person making the appeal is not the candidate or his agent, consent of the candidate or his agent is mandated. The appel!l is to vote or refrain from voting for any person .. The expression 'any person' is evidently a reference to a camlidate contesting the election. The third i>art speaks of the basis of tb,e appeal. The appeal is to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language. In the latter part of Section 123(3), the corrupt practices consist in the use of or appeal to religious symbols or national symbols such as the national flag or emblem for (i) the furtherance of the prospects of the election of that candidate or (ii) prejudicially affecting the election of any ca.ndidate. [Paras 13 and 14) (231-A-E) A B c D E F G H 170 A B c D E F G H SUPREME COURT REPORTS [2017] I S.C.R.

2.2 Section 123(3) evinces a Parliamentary intent to bring within the corrupt practice an appeal by a candidate or his agent (or by any person with the consent of the candidate or his election agent) to either vote or refrain from voting for any person. The positive element is embodied in the expression "to vote". What it means is that there is an appeal to vote in favour of a particular candidate. Negatively, an appeal not to vote for a rival candidate is also within the text of the provision. An appeal to vote for a candidate is made to enhance the prospects of the candidate at the election. An appeal to refrain from voting for a candidate has a detrimental effect on the election prospects of a rival candidate. Hence, in the first instance, there is an appeal by a candidate (or his agent or by another person with the consent of the election agent). The appeal is for soliciting votes in favour of the candidate or to refrain from voting for a rival candidate. The expression 'his' means belonging to or associated with a person previously mentioned. The expression "his" nsed in conjunction with religion, race, caste, community or language is in reference to the religion, race, caste, community or language of the candidate (in whose favour the appeal to cast a vote is made) or that of a to refrain from rival candidate (when an appeal is made voting for another). It is impossible to construe sub-section (3) as referring to the religion, race, caste, community or language of the voter. The provision, adverts to "a candidate" or "his agent", or "by any other person with the consent of a candidate or his election agent". This is a reference to the person making the appeal. The next part of the provision contains a reference to the appeal being made "to vote or refrain from voting for any person". The vote is solicited for a candidate or there is an appeal not to vote for a candidate. Each of these expressions is in the singular. They are followed by expression "on the ground of his religion ... ". 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. 'His' religion (and the same principle would apply to 'his' race, 'his' caste, 'his' community, or 'his' language) must hence refer to the religion of the person in whose favour votes are solicited or the person against whom there is an appeal for refraining from ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. casting a ballot. [Para 15] [231-F-H; 232-A-D]

2.3 Section 123(3) nses the expression "on the ground of his religion ... ". The expression 'the' is a definite article used especially before a noun with a specifying or particularizing effect. 'The' is used as opposed to the indefinite or generalizing forces of the indefinite article 'a' or 'an'. The expression 'ground' was substituted in Section 123(3) in place of 'grounds', following the amendment of 1961. Read together, the words "the ground of his religion •.. " indicate that what the legislature has proscribed is an appeal to vote for a candidate or to refrain from voting for another candidate exclusively on the basis of the religion (or race, caste, community or language) of the candidate or a rival candidate. 'The ground' means solely or exclusively on the basis of the identified feature or circumstance. [Para 16] [232-E-G]

2.4 There is a clear rationale and· logic underlying the provision u/s. 123(3). A person who contests an election for beiug elected as a representative of the people either to Parliament or the State legislatures seeks to represent the entire constituency. A person who is elected represents the whole of the constituency. The Constitution of India has rejected and consciously did not adopt separate electorates. Eveu where a constituency .is reserved for a particular category, the elected candidate represent~ the constituency as a whole and not merely persons who belong to the class or category for whom the seat is reserved. A representative of the people represents people at large and not a particular religion, caste or community. Consequently, as a matter of legislative policy Parliament lias mandated that the religion of a candidate cannot be utilized to solicit votes at the election. Similarly, the religion of a rival candidate cannot form the basis of an appeal to refrain from voting for that candidate. (Para 17] [232-H; 233-A-C]

2.5 There is also rationale for Section 123(3) not to advert to the religion, caste, community or language of the voter as a the broad corrupt practice. The Constitution recognizes diversity of India and, as a political document, seeks to foster a sense of inclnsion. It seeks to wield a nation where its citizens practice different religions, speak varieties of languages, belong to various castes and are of different communities into the 171 A R c D E F G H 172 A B c D E F G H SUPREME COURT REPORTS (2017] l S.C.R. concept of one nationhood. Yet, the Constitution, in doing so, recognizes the position of religion, caste, language and gender in the social life of the nation. Individual histories both of citizens and collective groups in the society are associated through the ages with histories of discrimination and injustice on the basis of these defining characteristics. In numerous provisions, the Constitution has sought to preserve a delicate balance between individual liberty and the need to remedy these histories of injustice founded upon immutable characteristics such as of religion, race, caste and language. There is no wall of separation between the State on the one hand and religion, caste, language, race or community on the other. [Paras 18, 20) [233-D-F; 235-C)

2.6 The corrupt practice lies in an appeal being made to vote for a candidate on the ground of his religion, race, caste, community or language. The corrupt practice also in an appeal to refrain from voting for any candidate on the basis of the above characteristics of the candidate. · Electors however, may have and in fact do have ·a legitimate expectation that the discrimination and deprivation which they may have suffered in the past (and which many continue to suffer) on the basis of their religion, caste, or language should be remedied. Access to governance is a means of addressing social disparities. Social mobilisation is a powerful instrument of bringing marginalised groups into the mainstream. To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction. Coupled with this fact is the constitutional protection of free speech and expression in Article 19(l)(a) of the Constitution. This fundamental right is subject to reasonable restrictions as provided in the .Constitution. Section 123(3) was not meant to and does not refer to the religion (or race, community, language or caste) of the voter. If Parliament intended to do so, it was for the legislature to so provide in clear and unmistakable terms. There is no warrant for making an assumption that Parliament while enacting Section123(3) intended to sanitize the electoral process from the real histories of the people grounded in injustice, discrimination and suffering. ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. The purity of electoral process is sought to be maintained by proscribing an appeal to the religion of a candidate (or to his or her caste, race, community or language) or in a negative sense to these characteristics of a rival candidate. The "his" in Section .123(3) cannot validly refer to the religion, race, caste, community or language -of the voter. [Para 20] [235cE-H; 236-A-C]

#2. 7 s. 123(3) does not prohibit discussipn, debate or dialogue during the course of an election campaign on issues pertaining to religion or on issues of caste, community, race or language. Discussion of matters relating to religion, caste, race, community or language which are of concern to the voters is not an appeal on those grounds. Caste, race, religion and language are matters of 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 llave suffered on the basis of caste and race. 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. [Para 21] [236-E-H; 237-A-B]

2.8 Thus, 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 123(3) must refer to the caste, religion, race, com'!lunity or language of the voter. On the contrary, there are sound constitutional 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 partil; ular theory based on purposive interpretation; when that principle of interpretation does not riecessarily 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. [Para 22] [237-D~F]

2.9 The traditional view of courts both in India and the UK was a rule of exclusion by which parliamentary history was not readily utilized in interpreting a law. Over a period of time, the narrow view favouring the exclusfon of legislative history has given way to a broader perspective. · Debates in the Constituent Assembly have been utilized as au aid to the interpretation of a 173 A B c D E F G H 174 A B c D E F G H SUPREME COURT REPORTS [2017] I S.C.R. constitutional provision. The modern trend is to permit the utilization of parliamentary material, particularly a speech by the Minister moving a Bill in construing the words of a statute. The use of parliamentary debates as an aid to statutory interpretation has been noticed in several decisions of this Court. There is need for a balance between the traditional view supporting the exclusion of the enacting history of a statute and the more realistic contemporary doctrine allowing its use as an aid to statutory interpretation. 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 legisfature, 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. [Paras 31, 32, 33 and 35 ] [243-B-C; 244-D-G; 246-C-D] Chiranjit Lal Chowdhuri v. Union of India AIR 1951 · SC 41: [1950] SCR 869; Dr Ramesh Yeshwant Prabhoo v. PK Kunte [1995] 6 Suppl. SCR 371 : 1995 (7) SCALE 1 - relied on. Stale of Travancore Co. 1( Bombay Co. Ltd. AIR 1952 SC 366 : [1952] SCR 1112; State of West Bengal v. Union of India (1964] 1 SCR 371; . Indra Sawhney v. Union of India AIR 1993 SC 477 : (1992] 2 Suppl. SCR 454; Novartis AG v. Union of India (2013) 6 SCC 1 : [2013] 13 SCR 148; State of Madhya Pradesh 1(Dadabhoy s New Chirimiri Ponri Hill Colliery Co. Pvt. Ltd. (1972) 1 SCC 298 : [1972] 2 SCR 609; Union of India v. Legal Stock Holders Syndicate AIR 1976 SC 879 : [1976] 3 SCR 504; KP Vergese 1( Income Tax Officer AIR 1981 SC 1922 : (1982] 1 SCR 629; Surana Steels Pvt. Ltd. v. Dy Commissioner of Income Tax [1999) 2 SCR 589 : (1999) 4 SCC 306 - referred to. 'Principles of Statutory l11terpretu!w11' by G.P. Singh XIVth Edn.P-253; Bennion on Statut01y lnlerpretalion, Indian Reprint Sixth Edition page 561 - referred to.

2.10 The legislative history of s. 123(3) indicates that Parliament, while omitting the requirement of a "systematic" appeal intended to widen the ambit of the provision. An 'appeal' ABHIRAM SINGH v. C.D. COMMACHEN (DEAD) BY LRS. & ORS. 175 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 if the expression "his" religion is used to refer to the religion of a candidate, the legislature would be con.straining the width of the provision even beyond its precamended 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 requirement 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, sub section 3A was not introduced earlier into Section 123. A new corrupt practice of that nature 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 should be widened. Parliament would be mindful of the consequence of an unrestrained expansion of the ambit of Section f23(3). Parliament is entitled 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 o.r of a rival candidate. For, 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 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 to perceive, in A -B c D E F .G H 176 SUPREME COURT REPORTS [2017] I S.C.R. A that purpose. [Para 36] [246-D-H; 247-A-D] 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. G Kalpana K. Tripathy Referred question answered.