Abhiram Singh v. C.D. Commachen (2017): an appeal to religion by or for anyone is a corrupt practice

For a quarter of a century, a single pronoun decided how far the law could police religion in Indian elections. Section 123(3) of the Representation of the People Act, 1951 makes it a corrupt practice to appeal for votes "on the ground of his religion, race, caste, community or language." The question was whose religion the word "his" pointed to. A narrow reading confined it to the candidate (or a rival candidate); a broad reading swept in the voter as well. On 2 January 2017, a seven-judge Constitution Bench of the Supreme Court resolved the split — but only just, dividing 4:3 — and chose the broad reading. The result, in the majority's framing, is that religion, race, caste, community and language are kept out of the electoral process altogether.

The facts in brief

The dispute traced back to the 1990 Maharashtra Assembly election. Abhiram Singh was returned from the Santa Cruz constituency in Bombay; his rival, C.D. Commachen, challenged the election on the ground that communal and religious appeals had been made during the campaign. The election petition wound through the Bombay High Court and reached the Supreme Court, where it became entangled with a deeper interpretive controversy about section 123(3) that earlier benches had left unsettled. Because the construction of "his" went to the foundations of how the statute regulates religion and politics, the matter was eventually referred to a seven-judge Bench. By the time it was decided, Commachen had died and was represented by his legal representatives.

The question

Section 123(3) treats as a corrupt practice an appeal by a candidate or his agent to vote, or to refrain from voting, "on the ground of his religion, race, caste, community or language." The single referred question was what "his" qualifies. Does it cover only the candidate (and a rival candidate against whom the appeal is directed), so that mobilising voters along the lines of their own religion or community is permissible? Or does it extend to the voter, so that any invocation of religion, race, caste, community or language to solicit votes — whoever's identity is invoked — falls within the prohibition?

What the Court held

The majority — comprising Chief Justice T.S. Thakur and Justices Madan B. Lokur, S.A. Bobde and L. Nageswara Rao — adopted the broad construction. Preferring a purposive reading to a literal one, the majority held that "his" embraces the religion, race, caste, community or language of the candidate, his agent, any other person making the appeal with the candidate's consent, and the elector. An appeal on any of those grounds, whoever's identity it draws on, is a corrupt practice that vitiates the election.

The majority anchored the reading in the secular design of the electoral process: religion can have no part in the relationship between the State and the individual, and an election — the moment that constitutes the representative — must remain a secular act. Read against that purpose, confining "his" to the candidate would, the majority reasoned, leave a gaping route for communal mobilisation simply by appealing to the voter's own faith or community rather than the candidate's. The phrase therefore had to cover everyone in the electoral transaction.

The minority — Justices Adarsh Kumar Goel, Uday Umesh Lalit and Dr. D.Y. Chandrachud — read "his" narrowly, confining it to the religion, race, caste, community or language of the candidate in whose favour the appeal is made, or of a rival candidate against whom it is directed. For the dissent, the broad reading effectively redrafted the provision: Parliament had used a possessive pronoun tied to the candidate, and to stretch it to the voter was to legislate under the guise of interpretation. The dissent was alive to the danger of disenfranchising legitimate grievances of marginalised communities, which often necessarily speak in the language of caste, community or religion.

Analysis

The division is, at bottom, a disagreement about method. The majority treats section 123(3) as an instrument with a discernible secular purpose and construes the text to serve that purpose; the dissent insists that the words Parliament chose — a possessive pronoun grammatically tethered to the candidate — set the outer limit of what a court may do. Both readings are textually defensible, which is precisely why the question survived for decades and ultimately split a seven-judge Bench four to three.

The practical reach of the majority view is significant but also imprecise. By extending the prohibition to appeals invoking the voter's identity, the judgment potentially captures a vast range of campaign speech, since much political mobilisation in India is articulated through community. The majority did not lay down a granular test for separating a forbidden religious appeal from a permissible engagement with the concerns of a community — a gap later litigation would have to fill, and which the dissent foresaw. The judgment also sits alongside the long line beginning with cases on whether seeking votes for Hindutva as "a way of life" amounts to a religious appeal, leaving the line-drawing exercise to be worked out case by case.

What is settled, and settled at the highest authority, is the construction of "his." After Abhiram Singh, an election petition under section 123(3) need not show that the appeal invoked the candidate's own religion; an appeal trading on the religion, race, caste, community or language of anyone in the electoral process — including the voter — suffices.

Why it matters

Abhiram Singh is the governing authority on the scope of the most important religion-and-elections provision in Indian statute law. It tells election-petition practitioners that the corrupt-practice inquiry is not limited to the candidate's identity, widening the field of conduct that can void a return. It frames the election itself as a secular exercise, a characterisation that resonates well beyond section 123(3). And the 4:3 split — with three judges, including a future Chief Justice, warning against judicial redrafting and against muting the legitimate voice of disadvantaged groups — keeps the debate over how a secular State should regulate identity in democratic contests very much alive.

Related on Valkya

• Krishnamoorthy v. Sivakumar: non-disclosure of pending criminal cases as a corrupt practice
• Arjunan Sampath v. The Chief Electoral Officer: religion and reserved constituencies
• PUCL v. Union of India: the voter's right to information
• Romesh Thappar v. State of Madras: free speech and public order

Sources

• SCC Online Blog, "Appeal in the name of religion, caste or community of the candidate, his agent, opponent or voter is a corrupt practice"
• LiveLaw, "Explainer | Appeal On Ground Of Religion & Use Of Religious Symbols For Votes As 'Corrupt Practice' Under RP Act"
• Supreme Court Observer, "Abhiram Singh v. C.D. Commachen (Electoral Appeals Case)"