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

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 -

1. 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?
2. 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?
3. 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 Singh v. Sunderlal Patwa to a seven-Judge Bench for consideration of the scope of ‘corrupt practice’ under Section 123(3) of the Representation of Peoples Act, 1951. Considering the fact that in Abhiram’s case one of the issues was the scope of ‘corrupt practice’, the matter was referred to a seven-Judge Bench to a limited extent on the interpretation of Section 123(3).

The matter was decided by the seven-Judge Bench by its order dated 02.07.2017. The majority held that electoral candidates cannot appeal to voters on the grounds of either their or the electorate’s religion, race, caste, community or language. It was held to be ‘corrupt practice’ under Section 123(3).

In the hearing before the 2-judge bench last week (May 3), Senior Advocate Devadatt Kamat, appearing for the respondent in the case, argued that the matter should be heard by a five-judge, as per the original reference. Senior Advocate Arvind P Datar, appearing for the appellant, argued that the appellant is nearly 80 years old and the original election petitioner has expired, and the matter has lost its relevance.

The bench observed that the questions of law formulated by the 3-judge bench in 1996 ought to be heard by the 5-judge bench.

While making the reference, the division bench observed :

"We are informed that Respondent No.1 – election petitioner has already passed away. The appellant is also more than 80 years old. The Civil Appeal is of the year 1992, we, therefore, request Hon’ble the Chief Justice of India to constitute the Bench at the earliest"

Hindutva issue

It may be noted in a parallel proceeding, the issue related to interpretation of 'Hindutva/Hinduism' arose.  In 1995, a two-judge bench led by Justice JS Verma, in the case Dr. Ramesh Yeshwant Prabhoo vs Shri Prabhakar Kashinath Kunte made an observation that appeals to vote on the basis of Hindutva will not constitute a corrupt practice.

"The words `Hinduism' or `Hindutva' are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of the people of India, depicting the way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract these terms are indicative more of a way of life of the Indian people and are not confined merely to describe persons practising the Hindu religion as a faith", Justice JS Verma wrote in the judgment.  The correctness of this judgment was also referred to a larger bench.

However, in 2016, the 7-judge bench hearing the Abhiram case stated that it will not examine the 'Hindutva' issue, by pointing out that it is not one of the issues referred by the three-judge bench.

[Case Title: Abhiram Singh v. CD Commachen (Dead) By Lrs. And Ors. Civil Appeal No. 36/1992]

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