Sometimes, the destiny of nations is cast in stone by a single judicial vote. In 1973, it was a 7:6 plurality of the Supreme Court in the Kesavananda Bharati case that gave India its doctrine of the basic structure of the Constitution. Similarly a 5:4 majority of the U.S. Supreme Court in Bush v. Gore inflicted George W. Bush upon the world in the year 2000. This new year has begun with a 4:3 verdict of the Indian Supreme Court that sweeps into the law’s clutches a lot of sectarian political discourse which has been the bane of India’s democracy.
It must be clarified that the Supreme Court has not gone into interpreting, clarifying or overruling its earlier three-judge Bench decision on Hindutva (1995) in the context of electoral appeals. During the hearings, the court had made it clear that the order of reference to the seven-judge Bench had not included that question and hence it would not be gone into. Given the temper of the times, the court probably saw the wisdom of Justice Louis Brandeis’s dicta that “the most important thing we do is not doing”, and that the court should not “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied”.
Thus the new judgment in Abhiram Singh v. C.D. Commachen has only interpreted Section 123(3) of the Representation of the People Act of 1951, which penalises as a corrupt practice in an election “the appeal… to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language”.
Split over a word
The question therefore turned only on the interpretation of the pronoun “his” which is used in the section. Does the appeal to “his religion” mean an appeal to the religion of the candidate alone? Or does it qualify appeals made to the religious sentiments of all participants in the electoral battle, including the candidates, voters, election agents and the like? Under the narrower interpretation, a candidate would not be entitled to say, “I am a Hindu, you are Hindus and hence should vote for me.” The broader interpretation, which has been accepted by the majority, would penalise even an appeal which tells the voter, “You, as Hindus, know that I alone can defend your interests.”
Justice D.Y. Chandrachud’s minority judgment for himself and Justices A.K. Goel and U.U. Lalit records, “Quibbles over the meaning of a word apart, the interpretation that will be adopted by the court will define the boundaries between electoral politics on the one hand and individual or collective features grounded in religion, race, caste, community and language on the other.”
The basic arguments seeking a narrower interpretation urged that the sub-section must be given a literal interpretation since severe civil consequences like disqualification from elections flowed from a finding of corrupt practice. It was also urged that a broad or purposive interpretation might fall afoul of Article 19(1)(a) of the Constitution. It was submitted that departing from a literal or strict interpretation would mean unsettling the law accepted over several decades and that the Supreme Court had no such strong reason to do so. While examining these contentions, much of the differences between the majority and the minority rested upon their reading of the parliamentary debates.
The original intent
A.K. Sen, who was the Law Minister in 1961, explained the reason for the introduction of the word ‘his’ in a speech in the Lok Sabha: “I added the word ‘his’ in the Select Committee in order to make quite clear as to what was the mischief which was sought to be prevented under this section… after all, it is the right of a person to propagate his own language, his own particular culture and various other matters. But that does not mean vilifying another language or creating enmity between communities.
“You cannot make it an election issue if you say, ‘Do not vote for him. He is a Bengali’ or ‘Do not vote for him. He is a Khasi.’ I made it unequivocally clear that it is the purpose and design of this House and of the country to ensure that. No man shall appeal only because he speaks a particular language and should get voted for that reason; or no man shall appeal against a particular person to the electorate solely because that opponent of his speaks a particular language.
“But we are on a very narrow point, whether we shall extend the right to a person, to a voter, to say: vote for me because I speak Hindi, I speak Garhwali, or I speak Nepali or I speak Khasi; or in the alternative, do not vote for my opponent because he is a man who speaks this particular language, his own language. It is on that sole narrow point that the prohibition is sought to be made.
“But the problem is, are we going to allow a man to go to the electorate and ask for votes because he happens to speak a particular language or ask the electorate to refrain from voting for a particular person merely on the ground of his speaking a particular language or following a particular religion and so on? If not, we have to support this.”
The minority judgment of Justice Chandrachud, speaking for himself and Justices Goel and Lalit, holds that “the speech of the Law Minister, who moved the Bill, leaves no manner of doubt that the expression ‘his’ referred to the religion of the candidate (or his caste, community, race or language) for whom votes were sought or of the candidate whose election was sought to be prejudicially affected by an appeal to refrain from voting”.
The majority judgment authored by Justice Madan B. Lokur, speaking for himself and Justice L. Nageswara Rao, with separate concurrences by Chief Justice T.S. Thakur and Justice S.A. Bobde, examined the same speech in the context of other amendments moved to Section 153A of the Indian Penal Code.
Law Minister Sen had also said: “We feel, and I think it has been the sense of this House without any exception, that even a stray appeal to success at the polls on the ground of one’s religion or narrow communal affiliation or linguistic affiliation would be viewed with disfavour by us here and by the law. Therefore, I think that when we are grappling with a very difficult disease, we should be quite frank with our remedy and not tinker with the problem, and we should show our disfavour openly and publicly even of stray cases of attempts to influence the electorate by appealing to their sectarian interests or passions. I think that this amendment follows as a consequence of the amendment which we have already made in the Indian Penal Code… I think that these two provisions, if followed faithfully, would go a long way in eradicating or at least in checking the evil which has raised its ugly head in so many forms all over the country in recent years.”
The purposive approach prevails
The lead judgment of the majority relies upon the principle of purposive construction of statutes to hold that “the Representation of the People Act, 1951 is a statute that enables us to cherish and strengthen our democratic ideals. To interpret it in a manner that assists candidates to an election rather than the elector or the electorate in a vast democracy like ours would really be going against public interest.”
Chief Justice Thakur in his concurrence with the majority ruled that “while interpreting a legislative provision, the Courts must remain alive to the constitutional provisions and ethos and that interpretations that are in tune with such provisions and ethos ought to be preferred over others. Applying that principle to the case at hand, an interpretation that will have the effect of removing the religion or religious considerations from the secular character of the State or state activity ought to be preferred over an interpretation which may allow such considerations to enter, effect or influence such activities. Electoral processes are doubtless secular activities of the State. Religion can have no place in such activities for religion is a matter personal to the individual with which neither the State nor any other individual has anything to do… The State can and indeed has in terms of Section 123(3) forbidden interference of religions and religious beliefs with secular activity of elections to legislative bodies”.
To my mind the dilemma answered by the court is best illustrated by these lines from the end of Faiz Ahmed Faiz’s ‘ Hum Dekhenge ’: “ Bas naam rahega Allah ka / jo ghayab bhi hai haazir bhi / jo manzar bhi hai naazir bhi / uthegaa “ina-l-haqq” kaa naaraa / jo main bhi hoon aur tum bhi ho / aur raj karegi Khalq-e-Khudaa / jo main bhi hoon aur tum bhi ho (Only the name of God shall remain / Who is both absent and present / Who is the spectacle and the spectator / The cry “I am He” will arise / Of which I am a part and so are you / And the people of God will rule / Of which I am a part and so are you).”
The lines, read in isolation, seem to be a direct invocation to the establishment of a Caliphate. But those who know the context of Faiz the poet, the man and his work correctly interpret it as a communist vision of life, with the dictatorship of the proletariat prevailing. Similarly, future challenges in court to election victories based on identity politics will now walk the fine line of text, context and subtext.
Sanjay Hegde is a senior advocate of the Supreme Court .