Supreme Court Refers Issues In 'Abhiram Singh' Case Relating To Interpretation Of 'Corrupt Practices' Under RP Act To 5-Judge Bench

Recently, a Division Bench of the Supreme Court comprising Justice Surya Kant and Justice JK Maheshwari referred the Civil Appeal Abhiram Singh v. CD Commachen, in which the issue of interpretation of the scope of ‘corrupt practices’ under Section 123(3) of the Representation of Peoples Act 1951 arose, to a five-Judge Bench.In 2017, a seven-Judge Bench had decided one of the issues in the Abhiram Singh holding (by 4:3 majority) that a political candidate or anyone with his/her consent, cannot appeal to the candidate’s, his agent’s, or voters’ religion, race, caste, community or language during elections as the same would constitute ‘corrupt practices’ under Section 123(3). After answering the reference, the seven-Judge Bench had recorded in its order that the respective appeals would be heard by the regular Bench to be constituted by the Chief Justice of India. In view of the same, the matter was listed before the Division Bench led by Justice Kant. However, it noted that the three-Judge Bench before which the matter was initially listed had observed that the entire matter needs to be considered by a five-Judge Bench. Accordingly, the Division Bench thought it fit to direct the Registry to place the case before CJI DY Chandrachud for the purpose of constituting a five-Judge Bench.Background of the proceedingsThe proceedings arise from election to Santacruz Legislative Assembly seat in 1990 for the Maharashtra State Legislative Assembly. Abhiram Singh, who contested election as a BJP candidate was elected and CD Commachen, the Congress Party candidate was the one with second largest votes. Commachen had challenged the election result before the Bombay High Court on the ground that Singh had made communal statements during the election. The petition was allowed by the High Court’s order dated 24.12.1991. The High Court had held that “the voluminous oral as well as documentary evidence leaves no room for doubt that the plank of Hindutva/Hinduism/Hindu was used”. It had further held “it is clear from the voluminous material on record that the campaign was on the basis of appealing for votes on the basis of 1st Respondent's community and religion, i.e., the Hindu community and religion and that there was an attempt to create enmity and hatred between different classes of citizens on the basis of religion, community and caste particularly between the Hindus and Muslims”. Furthermore, the High Court noted, “prima facie, it does appear that the leaders have appealed for votes for the Hindu candidates of the two parties on the basis of their religion and community. Prima facie, it does appear that the leaders did attempt to create enmity and hatred between different classes of citizens on the grounds of community and religion”. The High Court opined, “In my view, it will have to be held that the tape recordings contain the speeches made at these meetings. This course is subject to hearing the leaders of these two parties on the Notices under Section 99 of the Representation of the People Act, 1951 which have been issued to them in Election Petition No. 21 of 1990.”Singh challenged the order of the High Court before the Apex Court and the matter came up for hearing before a three-Judge Bench. The then Senior Advocate, AM Khanwilkar, appearing for Singh, argued that findings recorded under Section 123(3) of the Representation of Peoples Act, 1951 without the compliance of requirement of notice under Section 99 vitiated the declaration that Singh’s allegations were baseless. In 1996, a three-Judges Bench led by Justice K Ramaswamy referred the matter to a larger bench after formulating three issues for consideration - whether the learned Judge who tried the case is required to record prima facie conclusions on proof of the corrupt practices committed by the returned candidate or his agents or collaborators [leaders of the political party under whose banner the returned candidate contested the election] or any other person on his behalf?whether the consent of the returned candidate is required to be proved and if so, on what basis and under what circumstances the consent is held proved?on reaching the conclusion that consent is proved and prima facie corrupt practices are proved, whether the notice under Section 99(1), proviso (a) should contain, like a mini judgment, extraction of pleadings of corrupt practices under Section 123, the evidence oral and documentary and findings on each of the corrupt practices by each of the collaborators, if there are more than one, and supply them to all of them for giving an opportunity to be complied with?Eventually, the three-Judge Bench referred the matter to a five-Judge Bench. It noted that the entire matter is required to be heard and decided by a larger Bench of five Judges as the decision thereon impinges upon the purity of election process and requires to be decided authoritatively. In 2014, the five-Judges Bench observed that another Constitution Bench had referred Narayan...

Supreme Court Refers Issues In 'Abhiram Singh' Case Relating To Interpretation Of 'Corrupt Practices' Under RP Act To 5-Judge Bench

Sohini Chowdhury

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