Decoding split SC ruling on poll speech

It was held that any appeal in the name of religion, by candidates or others for them, is a corrupt poll practice.

The reopening day of the Supreme Court’s calendar year, 2017 began with a few extremely relevant pronouncements. A seven-judge bench of the court vide a split decision in a close ratio of 4:3 decided the issue of appeals to religion (caste, language etc) during election campaigns.

The legal question before the bench was very specific and actually only revolved around a pronouncement in the statute book dealing with elections in India: the word “his” in Section 123(3) of the Representation of the People Act, 1950.

Section 123 sets out certain “corrupt electoral practices”. The consequences of a candidate being found guilty of engaging in a corrupt electoral practice range from imprisonment to having the election declared void.

Sub Clause (3) of the section 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.”

The reference question before the bench was whether the word ‘his’ implied only electoral candidates, or whether it included the voters as well. In other words, did the section include a broader range of appeals that also encouraged electors to vote on the basis of their religion (or language, caste etc).

What was not dealt with: Firstly, the bench was not answering a reference about the broad proposition whether appeals to religion were allowed in politics. Section 123(3) already makes it clear that at least in certain contexts, appeals to religion are forbidden in elections. In fact, when this restriction was challenged in 1954 for being unconstitutional, the SC had rejected the challenge observing that the Act did not stop a man from speaking, but only regulated what he could say if he wanted to contest an election.

Secondly, this reference was also not about reviewing the famous – “Hindutva judgments” from 1995, wherein 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, as was made clear by Chief Justice T S Thakur (since retired) during the hearing.

What was dealt with: The majority – CJI Thakur, Justices Madan Lokur (for himself and Nageswara Rao) and Sharad Bobde – held that the word ‘his’ had to be interpreted broadly. They also collectively held that the reach of Section 123(3) had to be extended as far as its language reasonably allowed.

To justify this broad interpretation of Section 123(3), the majority explored the history of the various amendments to the Act, and conclusively held that in India, 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.

Secular character
Justice Lokur concluded that a corrupt electoral practice included any appeal made to a voter by a candidate 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 (caste, language etc) of: any candidate, or his agent, or any other person making the appeal with the consent of the candidate, or the voter/elector. In his concurring opinion, Chief Justice Thakur held that the secular character of India mandated excluding religion from public life altogether.

In his dissenting opinion, Justice Chandrachud (for himself, Goel and Lalit UU) took a different view of legislative history, secularism and constitutional values. Taking examples of certain statements made then, he observed that the framers of the election amendments through the divisive years of 1950s and 1960s were concerned with precise statements made by candidates seeking votes. Minority opinion held that this logic did not extend to the ‘voter’.

Checking ground realities, it was pointed out that in our country, social and religious differences have long existed, and where a voter’s interests are often defined by the group that he belongs to, he was not only expected, but fully entitled to vote on the basis of group affiliation.

The minority therefore held that Section 123(3) must be interpreted narrowly and cannot include broader range of appeals that also encouraged electors to vote on the basis of their religion (or language, caste etc). Justice Chandrachud also picked up the circumstances in which a reconsideration of an earlier decision can be sought to establish that the broad interpretation could not be supplanted to Section 123(3).

In a nutshell, the majority opinion holds that any appeal in the name of religion, whether by the candidate himself or a third party on his behalf to vote in the name of religion, whether that of the candidate or any other religion will be a “corrupt electoral practice.”

(The writer is an advocate, Supreme Court)