Supreme Court ban on religion in politics: Court’s order should be lauded for filling in loopholes left by gutless legislature

January 06, 2017 6:20 AM

The Supreme Court’s judgment in Abhiram Singh versus C.D. Commachen (Dead) through L.R.s and Ors. (the judgment), aims at broadening the purview and understanding of ‘corrupt practice’ under Section 123 (3) of the Representation of the People Act, 1951 (Act).

The majority opinion of the Court has read this provision to disallow any reference to the religion, race, caste, community or language, of the candidate, or of his rivals, or of the voters (the latter being contested in the dissenting opinion of Justice Chandrachud), to secure votes, or prejudice the electorate against a rival in an election. (PTI)The majority opinion of the Court has read this provision to disallow any reference to the religion, race, caste, community or language, of the candidate, or of his rivals, or of the voters (the latter being contested in the dissenting opinion of Justice Chandrachud), to secure votes, or prejudice the electorate against a rival in an election. (PTI)

The Supreme Court’s judgment in Abhiram Singh versus C.D. Commachen (Dead) through L.R.s and Ors. (the judgment), aims at broadening the purview and understanding of ‘corrupt practice’ under Section 123 (3) of the Representation of the People Act, 1951 (Act). Section 123 (3) of the Act prohibits any candidate, his agent, or any person consented by such candidate or his agent, from soliciting votes, or discouraging voters against voting for a rival candidate, on grounds of religion, race, caste, community or language, by declaring such conduct as a ‘corrupt practice’.

The majority opinion of the Court has read this provision to disallow any reference to the religion, race, caste, community or language, of the candidate, or of his rivals, or of the voters (the latter being contested in the dissenting opinion of Justice Chandrachud), to secure votes, or prejudice the electorate against a rival in an election. Given the immediate and potential political ramifications of this judgment, it is important to understand the nuances of the Court’s jurisprudential discourse, recorded in this judgment.

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A fallacious dissent

The critics of this majority opinion have assailed it using a three-pronged argument—first, a broad interpretation of Section 123 (3) violates the tenets of statutory interpretation by reading the provision against its literal meaning; second, the provision is violative of Article 19 and the right to free speech and expression, and third, an increasingly activist Supreme Court has allegedly blurred the separation of powers between itself and the other organs of the government, as prescribed by the Constitution.

The first argument appears to be a bit antiquated, as has been established by the separate, yet concurring opinions of Justice Lokur, Justice Bobde, and Chief Justice Thakur. The rule of literal interpretation no longer holds the hallowed sanctimony earning it the moniker of the ‘golden rule of interpretation’. In this background, Section 123(3) has been broadened in its scope, moving beyond a literal reading, particularly when such broad reading is concurrent with the true purpose of enacting or amending a statute. There is ample precedent supporting the broader and purposive interpretation of legislative provisions, like Section 123 (3), beyond their literal reading. As Justice Bobde also points out in his pithy, yet meaningful opinion, the literal and purposive rules of interpretation no longer operate in conflict, but in harmony, with each complementing the other. Further, a literal reading of the provision would result in a perplexing situation as has also been pointed in Justice Bobde’s opinion (para 4). As per the arguments of the appellant, only if a candidate refers to his own religion, race, caste, community, or language to influence voters, would such candidate be guilty of a corrupt practice. This argument results in an absurdity which is untenable in a practical scenario, and defeats the entire purpose of amending Article 123 (3) to expand its scope in 1961. For instance, if the argument is to be accepted, a Hindu candidate would be committing a corrupt practice, if he was to influence the electorate to vote for him because he is a hindu; however, he would be allowed to influence the electorate by maligning a rival candidate for belonging to another religion, escaping the ambit of Section 123(3), and its penal consequences.

The second argument which appears in paragraph 20 of Justice Chandrachud’s dissent, is a fallacious reading of Article 19 and the right of free speech and expression. The reasoning in the dissenting judgment seems to be based on a misunderstanding of the impact of a broader reading of Section 123(3). The mischief sought to be cured by this provision is the use of divisive rhetoric to solicit votes or tarnish a rival candidate. It does not seek to quell the voicing of legitimate grievances of a segment of society at a political rally. If such a speech influences the electorate directly or indirectly, to vote or desist from voting for a candidate, only then will such a candidate be culpable of a corrupt practice. As such, the restriction imposed is a reasonable one, in consonance with the exception carved under Article 19 itself.

The last argument is not novel but certainly warrants a discussion. The Supreme Court has been prescribed a certain role under the constitutional framework, with its highest priority being to safeguard the Constitution. In giving a broad understanding to the meaning of ‘corrupt practice’ under Section 123(3) of the Act, the majority opinion of the Court has sought to reinforce a hallmark of the Indian democracy—exercising adult franchise without being swayed by the corrupting influence of extraneous factors like caste and religion. Unfortunately, these prejudices are deep-seated in the Indian polity and electorate, a fact that is reiterated by the apex court at numerous places in its elaborate judgment. This broad understanding is also evidently in conformity with the legislative history of this provision, which unequivocally exhibits the intent of the legislature to eradicate the mischief of communalism and other divisive forces which deeply diminish the sanctity of our egalitarian democracy. Therefore, for this instance alone, the Court’s majority opinion should be lauded for taking a stand and filling in the loopholes left by a gutless and divided legislature.

 

The author, Ameen Jauhar is research fellow (Judicial Reforms’ Initiative), Vidhi Centre for Legal Policy. Views are personal

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