A bench of seven judges of the Supreme Court ruled on 2 January that appeals to make use of religion during campaigning a “corrupt practice” in electoral politics. In a reminder of the infamous Kesavananda Bharti split, the bench was sharply divided. Three judges were in favour; three against.
Until the Chief Justice of India, TS Thakur, tipped the scales in the favour of this landmark judgement, tightening the noose around those politicians who use religion or caste as a plea to garner votes.
The legal question before the bench listening to an appeal in Abhiram Singh v CD Commachen was a narrow one: how should the word “his” in Section 123(3) of the Representation of the People Act, 1951 (RPA) be interpreted? The clause deals with certain “corrupt” electoral processes, and this sub-section defines what a “corrupt” practice is:
The bench had to decide whether this would come to include only the religion, race, caste, community or language of the candidate, or also that of the voter.
Justice Madan B Lokur and L Nageswara Rao delivered the majority opinion with Justice SA Bobde and Chief Justice TS Thakur delivering concurring, but separate opinions.
Justices DY Chandrachud, AK Goel and UU Lalit delivered the dissenting judgement.
Justice Lokur penned the majority opinion on behalf of himself and Justice Rao, beginning by looking at the history of the provision and its amendments in the 60’s to underscore the intent or the spirit of the law, that is, to stave off “separatist tendencies”during a campaign.
He held that to maintain the “purity” of the electoral process, certain topics – such as religion, caste, language et cetera – were simply off-limits for politicians to garner or deflect votes; that it would be going “against public interest” to aid the candidate over the voter or the electorate in even the smallest way.
Justice Bobde delivered a concurring yet separate judgement.
However, it was the significant vote of outgoing Chief Justice of India TS Thakur that tipped the scales in favour of a purposive reading of the act. For him, even if both readings of “him” are correct, he would rather choose the interpretation more in tune with the intention of the original act and the secular foundations of our democracy. For him, no divisive parameters can be allowed to play any role in the State or its activities.
Justice Chandrachud authored the strongly dissenting opinion on behalf of Justices Lalit and Goel, looking at the legislative history and intent of the provision very differently from his colleagues.
For him, the framers of the law intentionally meant to deal only with the religion of the candidate and not the voter, by even going so far as using statements, such as “I am Hindu, vote for me”, as demonstrative examples back then. According to him, voters are entitled to shine a torch on the deep fissures that historically exist in our society and vote on the basis of their lived experiences.
Can the efforts of Mayawati – as she rose in polity by appealing to the Dalit sentiment of centuries of oppression, desperate for economic and social prosperity – be called “corrupt”? Can Ambedkar’s rallying call for the All India Scheduled Castes Federation in the 50’s be seen as electoral malpractice?
Chandrachud points to how it is necessary to allow electoral candidates the space to discuss and debate about genuine concerns of the people about the discrimination they face on the basis of religion, caste, language et cetera – such speech is “constitutionally protected” and identity politics has always been necessary for mobilising people to bring about a social change.
What do you think about the Supreme Court’s verdict? Does identity politics lead to fissures and biased elections or social movements and change? Is this judgement a nod to our sacred principle of secularism or against the fundamental right to free speech and expression?
Let us know your opinion (max: 100 words) in the comments below or emails us at editor@thequint.com.
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