Identity politics, elections and the Representation of the People Act, 1951

In 2017, a seven-Judge Bench of the Hon’ble Supreme Court of India in Abhiram Singh vs C.D. Commachen (Dead) By Lrs.& Ors delivered a judgement on Section 123(3) of the Representation of the People Act, 1951. The limited issue which the Supreme Court was called upon to decide was whether the language of Section 123(3) of the Representation of the People Act, 1951 allowed for an expansive reading of corrupt electoral practices proscribed by the provision so as to prohibit any and all reference to religion as part of an election campaign. To understand the issue better, let’s take a look at sub-Sections (3) and (3A) of Section 123, both of which are relevant to the discussion:

123. Corrupt practices—The following shall be deemed to be corrupt practices for the purposes of this Act:

(3) 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

Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.

(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

In a nutshell, the discussion in the judgement revolved around the interpretation of the underscored pronoun “his” in sub-section (3). The minority view in the judgement was that “his” had to be given its due based on the plain and express language of the provision. In practice, this would mean that the bar under the provision is limited to an appeal made to voters in an election by a candidate (including his agent or any other person making the appeal with the candidate’s or the agent’s consent) on the ground of his (candidate’s) own religion or the religion of a rival candidate.

However, the majority view was that, apart from the candidate’s own religion or that of the rival candidate, “his” includes a reference to (a) the religion of the candidate’s agent or (b) the religion of any other person who makes a religious appeal with the consent of the candidate or the candidate’s agent or (c) the religion of the voters to whom the appeal was being made. In arriving at this view, four judges of the Supreme Court resorted to what is known as “purposive construction” of the language of sub-Section (3) by relying upon (i) the origins of the provision, (ii) the history of its amendments including the amendment in 1961, (iii) the contemporaneous amendment to Section 153A of the Indian Penal Code, and (iv) resorting to what the majority has called “social context adjudication”.

Thanks to this view, thenceforth there could be no references to religion, race, caste, community or language as part of electoral discourse in India. Frankly, one is astounded both by the reasoning and the conclusion because they went well beyond what was intended to be curbed by the Parliament through the amendment effected to Section 123 in 1961. This is because, in the process of purposively interpreting the 1961 amendment, the majority view had misconstrued the very purpose it claimed to further.

The limited Legislative intention behind the amendment in 1961 was only to curb even solitary attempts by candidates in an election to seek votes by appealing to their religion, caste, community or language, or by targeting the religion, caste, community or language of a rival candidate. The goal was to prevent anyone from being elected or from being boycotted in an election on grounds of her or his religious identity- no one should be elected or boycotted because she or he is a Hindu or a Muslim.

However, it was never nor could have been the intention of the Parliament to pixelate religion, caste, community or language altogether from electoral discourse because such an amendment would have been vulnerable to a constitutional challenge. Here’s why- according to the interpretation of the provision prior to the current decision of the Supreme Court, had Ambedkar been alive and had he contested elections post the 1961 amendment to Section 123, he could not have legally appealed to voters citing his caste, but he could have legitimately and constitutionally appealed to voters of a certain caste citing the caste-based discrimination they suffered (and still suffer). Not just that, Section 123(3A) read with Section 153A of the IPC would have acted as a safeguard by preventing Ambedkar from using a caste-based appeal under sub-Section (3) to sow seeds of hatred and enmity between people of different castes. Simply put, under the previous interpretation, while an appeal based on the caste of the voters was not barred, using that as a façade to promote enmity between castes was forbidden. This is an illustration of the balanced interplay between sub-Sections (3) and (3A) of Section 123, and Section 153A of the IPC, which was in vogue prior to the judgement under discussion. This balanced approach was rendered illegal by the majority view of the Supreme Court.

The long and short of it is that the majority view stands in the way of political empowerment of communities. What is also anomalous and impractical about the reasoning is that it treats as permissible any reference to religion, caste, community or language in a non-electoral political context, but somehow expects an election campaign, the very festival of celebration of democracy, to be insulated and hermetically sealed from all such references. This approach is at loggerheads with constitutional secularism, which the majority view claimed to be religiously faithful to, since the Constitution itself is not indifferent or hostile or oblivious to religion, caste, language or community and the role they play in social mobilisation. This nuance has been captured brilliantly in the minority view authored on behalf of three Judges of the Court by Justice Chandrachud. Here are a few excerpts:

“The expression ‘his’ means belonging to or associated with a person previously mentioned. The expression “his” used in conjunction with religion, race, caste, community or language is in reference to the religion, race, caste, community or language of the candidate (in whose favour the appeal to cast a vote is made) or that of a rival candidate (when an appeal is made to refrain from voting for another). It is impossible to construe sub-section (3) as referring to the religion, race, caste, community or language of the voter. The provision, it is significant, adverts to “a candidate” or “his agent”, or “by any other person with the consent of a candidate or his election agent”. This is a reference to the person making the appeal….

While establishing that notion, the Constitution is not oblivious of history or to the real injustices which have been perpetrated against large segments of the population on grounds of religion, race, caste and language…. Electoral politics in a democratic polity is about mobilisation. Social mobilisation is an integral element of the search for authority and legitimacy. Hence, it would be far-fetched to assume that in legislating to adopt Section 123(3), Parliament intended to obliterate or outlaw references to religion, caste, race, community or language in the hurly burly of the great festival of democracy.”

From a legal standpoint as well, apart from having gone beyond the Legislature’s intent in amending Section 123, it is this author’s humble view that the very application of “purposive construction” was without basis. Here are the rules regarding application of purposive construction to a statutory provision, which demonstrate the problems with the reasoning of the majority:

Purposive construction, as a rule, is warranted only if a plain and literal reading of the provision (a) gives rise to multiple reasonable interpretations or (b) leads to patent absurdity. Simply put, if there are more than one plausible and reasonable interpretations of a provision or the construction leads to absurdity, reference to the context in which the provision was brought about becomes necessary, particularly if the language is the product of an amendment(s);

However, merely because a provision has been subjected to multiple amendments, it wouldn’t be permissible for the Court to invoke purposive construction if the language is otherwise clear and is not at loggerheads with the rest of the statute;

Critically, if a provision is meant to curb mischief or forbid conduct which it deems corrupt, and also has the consequence of disqualifying an individual from taking part in the electoral process altogether, the provision is not meant to be interpreted liberally and expansively no matter how noble intention of the Court may be.

Applying these principles to the language of Section 123(3), it becomes evident that the majority view came at the expense of the express content of the provision, besides turning the rules of grammar and syntax relating to the use of pronouns on their heads. It is as plain as day that “his” in Section 123(3) refers only to the candidate or his rival, and not to the voter because there is no reference to the voter which would have justified his inclusion in “his”. And yet, the majority resorted to purposive construction when the provision did not call for its application in the first place, besides getting the purpose wrong.

In light of this, one cannot help but wonder if the majority view is the result of putting the cart before the horse. It almost seems as though the provision was “purposively” interpreted to further a predetermined view. In doing so, the majority view of the Court had blurred the necessary lines between what the law is as enacted by the Parliament and what it ought to be according to the Court. This, as one understands it, is not the role of the Judiciary, especially the highest Court of the land.

By reading into the language of the provision more than it warranted, by ascribing more to the will of the Legislature than history permitted and by justifying it all in the name of “social context adjudication”, it appears that the Court sees itself as the sole and final arbiter of what is good for a secular pluralist democracy and what constitutes one. Clearly, separation of powers, which is equally an integral and critical part of the basic structure of the Constitution, is the casualty in the process and does not bode well for the health of the very democracy the majority view professes to protect.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court and the High Court of Delhi.

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