Supreme Court ban on religion in elections is nothing unless high courts follow lead

In law, it is not always such grand words as "equality" or "democracy" that inspire reams of elaborate reasoning to understand their true meaning. Sometimes, it is just a simple, everyday three letter word. Two months ago, nine judges of the Supreme Court of India delivered six opinions between them on, inter alia, the true scope and meaning of the word "and" as it is used between clauses (a) and (b) of Article 304 of the Constitution.

The interpretation of the word "his" as it occurs in Section 123(3) of the Representation of the Peoples Act, 1951 (dealing with the prohibition of appeals based on religion, caste, etc. in elections)  was with what seven judges in Abhiram Singh versus CD Commachen were concerned, and managed to deliver four opinions between them.

A thin majority of four judges gave the word a wide interpretation and the minority, a narrow interpretation. The interpretation of this word has large implications for the way our elections are conducted.

File image of the Supreme Court of India. AFP

File image of the Supreme Court of India. AFP

This case was heard by a seven-judge bench because of a difference of opinion expressed between five judge benches on what was the true import of Section 123(3). This provision of law considers an appeal made by a successful candidate to voters based on religion, caste, creed, language et al to be a "corrupt practice", which can result in the election being annulled, and such candidate disqualified from elections.

The point of difference was this: Did this clause simply prohibit a candidate from using appeals to her (or her opponent’s) own religion, caste et al or did it prohibit all such appeals irrespective of the candidates' own religion?

To illustrate: Is it a corrupt practice only if a candidate belonging to X religion asked her fellow X adherents to vote for her on the ground of being X like them, or would it also be a corrupt practice if she asked all adherents of X religion to vote for her, even though she herself was an adherent of Y religion, simply because she would promote X religion in office?

A caveat is in order.

The example is very simplistic because what counts as an appeal based on religion or caste must be decided on the facts of each case. On either interpretation, the narrow or the broad one, whether an appeal amounting to a "corrupt practice" has been made must be decided taking into account all the facts of the case; the context and the circumstances which must be proved by leading evidence in the High Court. For instance, in the infamous “Hindutva case” (which was wrongly assumed to be in challenge here), the Supreme Court did hold the Shiv Sena corporator and Bal Thackeray guilty of a corrupt practice of appealing to Hindu voters based on religion after taking their statements in total.

In Abhiram Singh, the majority is represented by three judgments that take slightly different approaches to arriving at the conclusion. Justice Madan B Lokur examines the history of this provision of the RoPA; its earlier drafts, the discussions in Parliament, the amendments and why such amendments were being introduced. He looks at the purpose that was trying to be achieved in Parliament by amending Section 123 thus and concludes that a wide interpretation serves this purpose. Less certain is his use of "social context" to justify this purposive interpretation, based as it is on rather flimsy legal reasoning and not on the solid ground of textual interpretation of the law itself. No doubt a law must be interpreted in the social context in which it is required to be applied but whether this should mean that the meaning of a law should change over the years is highly debatable.

Justice SA Bobde on the other hand takes the view that even a literal interpretation of the provision in question leads to the wide interpretation suggested. His view is that the word “his” can refer to either the voter or the candidate, and should, given the intent of the act, be given this wide meaning.

Chief Justice of India TS Thakur’s opinion (which seems to have been the deciding "vote" in the matter, since he explicitly refers to both the majority and minority judgments in his opinion), is premised on the principle that appeals to religion tend to erode the secular character of the Constitution and the wider interpretation must be preferred to keep such religious appeals out of the picture during elections. Curiously though, he does not refer to caste or any of the other grounds in Section 123(3).

The minority judgment, authored by Justice DY Chandrachud, calls for a literal interpretation of the concerned provision, holding that the term "his" can only refer to the candidate’s identity or affiliation. He doesn’t entirely discard the purposive interpretation either, finding that the merit of the narrow interpretation is that it enables appeals made to protect the rights of religious, linguistic and caste minorities in India. While the argument in favour of literal interpretation is quite persuasive, there are reasons to reject it in this case.

Apart from debates when literal and purposive interpretations are to be preferred, the minority’s judgment is somewhat naïve about the cynical use of appeals to religion and caste in modern electioneering.

Appeals to narrow sectarian grounds come in many shapes, sizes and forms and, in these days when dog-whistle politics take the place of debate, cannot be allowed to dominate the discourse based on a narrow and pedantic reading of the law.

Equally it’s hard to see how the majority’s interpretation of Section 123(3) would stand in the way of a candidate promising to protect constitutional guarantees and rights in favour of a certain group, who have been discriminated or oppressed by membership of that group (as the minority judgment fears). The substance of the appeal must be gone into in any case, but the minority judgment’s fears on this front seem overblown.

Getting the law right is only half the battle in cleaning up the electoral process in India. The task of effective enforcement, here resting on the overburdened high courts who decide election petitions under the RoPA, still lies ahead if this ruling isn’t to remain just nice words on paper.

The author is an advocate based in Bengaluru and was senior resident fellow at Vidhi Centre for Legal Policy. Views expressed here are strictly personal.

Published Date: Jan 03, 2017 12:09 PM | Updated Date: Jan 03, 2017 12:09 PM

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