6th JANUARY 2017
Answer questions in NOT MORE than 200 words each. Content of the answer is more important than its length.
Links are provided for reference. You can also use the Internet fruitfully to further enhance and strengthen your answers.
GS II: POLITY
1. Purity of elections require that appeals to caste, religion, language, and community be kept out of the electoral process. Comment.
(Repeat Question from 4th Jan 2017)
- 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.
- 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.
- The judgment in Abhiram Singh v. C.D. Commachen has 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”.
Section 123(3) of the Representation of the People Act:
- 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 put forth 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?
Split over a word
- The question turned 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.”
- 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:
(i) 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
(ii) 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.”
- 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.
The dissenting opinion:
- The dissent’s crucial insight was this: after centuries of structural and institutional discrimination, markers of identity had acquired a certain social salience
- 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.”
- 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.
- 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.
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.”
- Future challenges in court to election victories based on identity politics will now walk the fine line of text, context and subtext.