MADAN B.LOKUR, J. - (1.) The foundation for this reference relating to the interpretation of Sec. 123(3) of the Representation of the People Act, 1951 to a Bench of seven judges has its origins in three decisions of this Court.
(2.) In Abhiram Singh Vs. C.D. Commachen, (1996) 3 SCC 665 the election in 1990 of Abhiram Singh to the No. 40, Santa Cruz Legislative Assembly Constituency for the Maharashtra State Assembly was successfully challenged by Commachen in the Bombay High Court. While hearing the appeal against the decision of the Bombay High Court, a Bench of three learned Judges expressed the view that the content, scope and what constitutes a corrupt practice under sub-sections (3) or (3A) of Sec. 123 of the Representation of the People Act, 1951 (for short, 'the Act') needs to be clearly and authoritatively laid down to avoid a miscarriage of justice in interpreting 'corrupt practice'. The Bench was of opinion that the appeal requires to be heard and decided by a larger Bench of five Judges of this Court on three specific questions of law.
(3.) In Narayan Singh Vs. Sunderlal Patwa, (2003) 9 SCC 300 the election of Sunderlal Patwa from the Bhojpur Constituency No. 245 in Madhya Pradesh to the Legislative Assembly in 1993 was under challenge on the ground of a corrupt practice in that the returned candidate had allegedly made a systematic appeal on the ground of religion in violation of Sec. 123(3) of the Act. The election petition was dismissed. In appeal before this Court, the Constitution Bench noticed an anomalous situation arising out of an amendment to Sec. 123(3) of the Act in 1961 inasmuch as it appeared that a corrupt practice for the purposes of the Act prior to the amendment could cease to be a corrupt practice after the amendment. On the one hand the deletion of certain words ["systematic appeal"] from the sub-section widened the scope of the sub-section while the addition of a word ["his"] seemingly had the opposite effect. Since there are certain other significant observations made in the order passed by the Constitution Bench, it would be more appropriate to quote the relevant text of the Order. This is what the Constitution Bench had to say: "In this appeal the interpretation of sub-section (3) of Sec. 123 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") as amended by Act 40 of 1961, has come up for consideration. This case had been tagged on to another case in the case of Abhiram Singh Vs. C.D. Commachen, (1996) 3 SCC 665. Abhiram Singh case has been disposed of as being infructuous. [This was an erroneous recording] The High Court in the present case has construed the provision of sub-section (3) of Sec. 123 of the Act to mean that it will not be a corrupt practice when the voters belonging to some other religion are appealed, other than the religion of the candidate. This construction gains support from a three-Judge Bench decision of this Court in Kanti Prasad Jayshanker Yagnik Vs. Purshottamdas Ranchhoddas Patel, (1969) 1 SCC 455 as well as the subsequent decision of this Court in Ramesh Yeshwant Prabhoo (Dr) Vs. Prabhakar Kashinath Kunte, (1996) 1 SCC 130. In the later decision the speech of the Law Minister has been copiously referred to for giving the provision a restrictive construction in the sense that the word "his" has been purposely used and, therefore, so long as the candidate's religion is not taken recourse to, it would not be a "corrupt practice" within the meaning of Sec. 123(3). There are certain observations in the Constitution Bench decision of this Court in the case of Kultar Singh Vs. Mukhtiar Singh, AIR 1965 SC 141 : (1964) 7 SCR 790 while noticing the provisions of Sec. 123(3) of the Act. There are certain observations in S.R. Bommai Vs. Union of India, (1994) 3 SCC 1 where this provision did not directly came up for consideration, which run contrary to the aforesaid three-Judge Bench decisions of this Court. The very object of amendment in introducing Act 40 of 1961 was for curbing the communal and separatist tendency in the country and to widen the scope of corrupt practice mentioned in sub-section (3) of Sec. 123 of the Act. As it appears, under the amended provision, the words "systematic appeal" in the pre-amended provision were given a go-by and necessarily therefore the scope has been widened but by introducing the word "his" and the interpretation given to the aforesaid provision in the judgments referred earlier, would give it a restrictive meaning. In other words, while under the pre-amended provision it would be a corrupt practice, if appealed by the candidate, or his agent or any other person to vote or refrain from voting on the grounds of caste, race, community or religion, it would not be so under the amended provision so long as the candidate does not appeal to the voters on the ground of his religion even though he appealed to the voters on the ground of religion of voters. In view of certain observations made in the Constitution Bench decision of this Court in Kultar Singh case we think it appropriate to refer the matter to a larger Bench of seven Judges to consider the matter. The matter be placed before Honourable the Chief Justice for constitution of the Bench." ;