Not quite what it seems: Decoding the Supreme Court’s judgement on election speeches

On January 2, a seven-judge bench of the Supreme Court split down the middle on the issue of appeals to religion during election campaigns. The legal question before the bench, however, was a narrow and specific one, and actually only turned upon a single word in a single sub-section in a single law: the word “his” in Section 123(3) of the Representation of the People Act, India’s omnibus law dealing with elections.

Section 123 of the Representation of the People Act sets out certain “corrupt electoral practices”. The consequences of being found guilty of engaging in a corrupt electoral practice are severe – they could range from imprisonment to having the election declared void. Section 123(3) of the Act declares a corrupt electoral practice to be:

“The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his 
religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”

Let’s pare this down to essentials:

“the appeal by a candidate... to vote or refrain from voting for any person on the ground of his religion...” 

The question before the Court was whether the word “his” (underlined in the section) qualified only electoral candidates, or whether it qualified the voter as well. In other words, did the Section only cover statements such as “I am a Hindu, vote for me” and “My opponent is a Hindu, do not vote for him”, or did it include a broader range of appeals that also encouraged electors to vote on the basis of their religion (or language, caste etc.).

What it was not about

It is therefore very important to note what this case was not about. It was not about the broad proposition about whether appeals to religion were allowed in politics. Section 123(3) made it clear that at least in certain contexts, appeals to religion were forbidden in elections. In fact, as far back as 1954, when this restriction was challenged as being unconstitutional, since it violated the freedom of speech and expression, the Court had rejected the challenge with the cavalier observation that the Representation of the People Act “did not stop a man from speaking”, but only regulated what he could say if he wanted to contest an election! This counter-intuitive proposition has been taken as received wisdom by the Court for the last 60 years; and even though this seven-judge bench had the authority to overrule it, it did not even consider the matter worthy of anything more than a one-line acknowledgment.

This case was also not about reviewing the famous – or notorious – “Hindutva judgment” from 1995, where the Supreme Court had held that since “Hinduism” and “Hindutva” amounted to a “way of life”, not every election speech that invoked these words amounted to a corrupt electoral practice. In fact, during the hearings, the Chief Justice had specifically stated that the Court would not be getting into the question of whether the “Hindutva judgment” had been correctly decided. While it is an open question whether this was the right thing to do, there is no doubt about the fact that on Monday, the Supreme Court’s judgments – majority and dissent – had nothing to say – either way – on the substantive issue of how to characterise “Hinduism” and “Hindutva” within the broader context of “appeals to religion”.

What it was about

What, then, was the Court’s decision? The majority – Chief Justice Thakur and Justices Lokur, Bobde and Nageswara Rao – held that the word “his” had to be interpreted broadly. As Justice Lokur concluded, a corrupt electoral practice included:

“... any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the ground of the religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector.”

To justify this interpretation of Section 123(3), the Majority delved into the history of the various amendments to the Representation of the People Act, and concluded that the underlying philosophy of India’s election regime was that, in order to maintain the “purity” of the electoral process, certain kinds of arguments had to be taken off the table. These included appeals to religion, caste, language etc., since they were inherently divisive, “fissiparous”, and contrary to constitutional values. In his concurring opinion, Chief Justice Thakur also held that the secular character of the Indian republic mandated excluding religion from public life altogether. For this reason, the four judges in the majority decided that the reach of Section 123(3) had to be extended as far as its language reasonably allowed.

However, in his dissenting opinion, Justice Chandrachud – joined by Justices Goel and Lalit – had a very different view, both of legislative history, and of constitutional values. Justice Chandrachud observed that what the framers of the election amendments – through the 1950s and 1960s – were concerned with were precisely statements of the kind: “I am a Hindu, vote for me” (in fact, they took examples of such statements when explaining the purpose of the law). This was because when a candidate was standing for election, she was expected to represent her constituency as a whole, and not a select sub-section of it, set aside by religious, caste-based or linguistic markers. However, Justice Chandrachud went on to hold that this logic did not extend to the voter. In a country like India, where social cleavages had long existed along the lines of religion, caste, language, and so on, and where your interests were often defined by the group that you belonged to, a voter was not only expected, but fully entitled to vote on the basis of group affiliation.

Consequently, the three dissenting judges held that Section 123(3) must be interpreted narrowly, and that it covered only statements of the kind “I am a Hindu, vote for me”, or “My opponent is a Hindu, don’t vote for him” – and not broader range of appeals that also encouraged electors to vote on the basis of their religion (or language, caste etc.).

Logically consistent?

As a matter of law, by force of numbers, the majority has carried the day. Which view, however, is the correct one? There is perhaps no definitive answer to this question. Perhaps it depends, rather, on each citizen’s assessment of which constitutional values are paramount.

Yet here’s a thought: if the Majority’s view was to be taken to its logical conclusion, then Dr Ambedkar would probably have been guilty of corrupt electoral practices while campaigning for the All India Scheduled Castes Federation in 1946. With respect to the four learned judges in the majority, perhaps we ought to be slightly skeptical of an interpretation that would lead us to such a conclusion.