Do fair elections require that certain kinds of statements — such as appeals to religion, caste, and language — be taken off the campaigning table altogether? Can the state prevent adult citizens from being exposed to certain ideas before they vote? Can a court decide that only certain kinds of interests count in a democracy? Does secularism mandate the complete exclusion of religion from the public sphere? And must identities based upon religion, caste, and language always be treated as evils to be fought and eradicated? Or can they sometimes become sites of emancipation, markers around which citizens organise themselves and seek liberation through the attainment of political power?
A landmark judgment
These questions, fundamental to understanding the foundations of our republic, were answered by a divided Supreme Court on Monday. The seven judges hearing the case split four to three, revealing the complexity of the issues involved, as well as an inevitable collision of constitutional values. And it all began with a disagreement over a single word: “his”.
Section 123(3) of the Representation of the People Act, India’s omnibus election law, defines a corrupt electoral practice as follows: “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....” The question before the Supreme Court was deceptively simple: did the underlined word “his” qualify only the electoral candidate (and his agent, or persons speaking with his consent)? Or did it also qualify the person to whom the appeal was addressed (the elector)? A quick glance at the text of the section will tell us that, although the former reading is more plausible, language alone cannot answer the question: the section does not specify whether “his” refers to the speaker seeking votes, or the audience from whom votes are being sought. To select one interpretation over the other, we must ask ourselves: what is this law trying to achieve?
The majority view
Four out of seven judges held that the law was trying to achieve the purity of elections, and that the purity of elections required that appeals to caste, religion, language, and community be kept out of the electoral process. In the view of the majority, an election that was fought and decided on these issues was a distortion of democracy. And it was distorted because of two reasons: one, that for democracy to survive, there must be agreement on certain basic essentials “which could unite and hold citizens together”. Religion, language, caste, etc were precisely the kind of divisive markers of identity that threatened this fragile consensus; and two, while democracy depended on voters exercising their franchise on the basis of rational thought and action, appeals to religion, language, and caste were inherently emotive and irrational in nature. To substantiate this, the majority also marshalled the legislative history behind the section, holding that its basic purpose was to “curb communal, fissiparous and separatist tendencies”. Therefore, to restrict Section 123(3)’s prohibition only to electoral candidates would be contrary to public interest.
Furthermore, in his separate, concurring opinion, Chief Justice T.S. Thakur added another string to this bow. The Chief Justice held that secularism required the complete exclusion of religion from public life: “Religion can have no place in such [secular] activities for religion is a matter personal to the individual with which neither the State nor any other individual has anything to do.”
Consequently, according to the majority, the word “his” in Section 123(3) was to be understood broadly, referring to both the speaker as well as the audience. In effect, it prohibited appeals to the prohibited “grounds” (religion, caste etc) during the electoral process.
At the heart of the majority’s vision of the democratic public sphere was the ideal of abstract, universal personhood. To enter the public sphere as citizens, we must leave our messy markers of personal identity at the door, embracing our disembodied citizen-selves. And once in the public sphere, we must participate as rational individuals, deliberating about the public interest, unencumbered by the baggage of our religion, caste, language, or community. But because our markers of identity are a constant temptation, the state must help us out. It does this by passing laws that prohibit certain kinds of election speech, speech that “appeals” to the prohibited markers of identity.
In this way, the state prevents the distortion of democracy, and helps us to become true citizens. To some, this might sound like a noble and inspiring vision of democracy, and of the Constitution.
But it was not the vision that the dissenting judges held. At the heart of the disagreement between the majority and the dissent was a disagreement over the idea of citizenship, and the value of identity. Justice D.Y. Chandrachud, the author of the dissenting opinion, wrote: “The Constitution... recognises the position of religion, caste, language and gender in the social life of the nation. Individual histories both of citizens and collective groups in our society are associated through the ages with histories of discrimination and injustice on the basis of these defining characteristics... [and] access to governance is a means of addressing social disparities. Social mobilisation is a powerful instrument of bringing marginalised groups into the mainstream. To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction.”
Universal citizen does not exist
The dissent’s answer to the majority’s construction of the universal citizen was that such an individual did not, and could not, exist. Human beings are always situated within their social contexts, and in India, these contexts have been characterised by religion, language, caste, and community. These are, and have been, the sites of inclusion and exclusion, privilege and oppression, domination and resistance, power, pleasure, discrimination, and suffering. In the dissent’s view, constitutional law could not be oblivious to this history. It could not wrench the individual out of her context, and set her down, abstract and disembodied, to deliberate in the public sphere. And most importantly, it could not say to those who, for centuries, had been denied dignity and rights on the very basis of their caste, religion, language or community that they were now precluded from organising around those very markers to liberate themselves.
In the last analysis, the dissent’s crucial insight was this: after centuries of structural and institutional discrimination, these markers of identity had acquired a certain social salience — that is, a certain visible significance. For all these years, this social salience had been used to arbitrarily exclude and marginalise those who fell on the wrong side of it. But now, with the advent of democracy, it was precisely this social salience that allowed the oppressed to organise around the site of their prior oppression, and use that to gain political power. It was that which allowed B.R. Ambedkar to form the All India Scheduled Castes Federation, a political party exclusively devoted to Dalit emancipation.
For this reason, the dissent held that Section 123(3) had to be construed narrowly. The phrase “his religion” referred only to the religion of an electoral candidate, and not the religion of the voter. Section 123(3) prohibited statements like “I am a Hindu, vote for me”, or “My opponent is a Hindu, don’t vote for her”. Such a law was permissible, because a candidate was supposed to represent her entire constituency, and not just a subset of it. But, the dissent held, this far and no further. The same logic could not be extended to citizen-electors, when they participated in the electoral process.
On Monday, the Supreme Court placed before us two visions of the Constitution, of democracy, of citizenship, and the public sphere. As a matter of law, the majority carried the day; but it is for each of us to ask ourselves which vision we find more convincing, and truer to our uniquely plural and diverse democracy, and to its eventful and tumultuous history.
Gautam Bhatia is a Delhi-based lawyer.