SC on Use of Religion: Making Indian Democracy More Illiberal

The minority judgement in the case before the SC on the use of religion is more thought through, writes Manoj Mitta.

Following the government's controversial move to fight corruption through demonetisation, the Supreme Court came up with a redefinition of a “corrupt practice”. This redefinition, though, has little to do with black money.

It's about widening the ambit of one of the corrupt practices listed in the election law, Section 123(3) of the Representation of the People Act. The practice of an “appeal” made by a candidate or anyone authorised by him to vote or refrain from voting on the basis of “his” religion, race, caste, community or language.

On 2 January, a seven-judge bench delivered a 4-3 verdict on the meaning of the pronoun “his” used in the provision dealing with the excesses of identity politics.

Giving a “broad and purposive interpretation” to that single word, the majority judgement held that the bar on the appeal for votes was on the basis of any of five listed identities of not just the candidates but also those of the voters.

This means that a candidate is now barred from appealing on the basis of, for instance, not just his own religion but also that of the voters he is addressing. The implication is that a candidate belonging to one religion is not allowed any longer to appeal for votes on the basis of another religion to which the voters belong.

Also Read: SC Bans Using Religion, Caste in Elections by Paper-Thin Majority

‘Maintaining Purity of Electoral Process’

The justifications offered for going beyond the “literal” interpretation suggests that the four judges comprising the majority on the bench believed that they were plugging a loophole. In the main judgement on behalf of Justice L Nageswara Rao and himself, Justice Madan Lokur said that this expansive reading was necessary “for maintaining the purity of the electoral process and not vitiating it”.

Since a candidate is prohibited from appealing for votes on certain grounds, Justice S A Bobde held:

The word ‘his’ therefore must necessarily be taken to embrace the entire transaction of the appeal to vote made to voters and must be held referable to all the actors involved i.e. the candidate, his election agent etc and the voter.

The then Chief Justice of India T S Thakur added, “So interpreted, religion, race, caste, community or language would not be allowed to play any role in the electoral process and should an appeal be made on any of those considerations, the same would constitute a corrupt practice.”

Also Read: Supreme Court Makes Use of Religion to Seek Votes Illegal

The Minority Judgement

The pious sentiments expressed by the four judges are unexceptionable. But the idea that votes could be canvassed without referring to any of the five identities of the electors seems far too cut off from the complexities of India's plural society. This is exactly why three judges dissented: Justices D Y Chandrachud, A K Goel and U U Lalit.

The minority judgement, authored by Chandrachud on behalf of all the three, pointed out that voters “may have and in fact do have a legitimate expectation that the discrimination and deprivation which they may have suffered in the past – and which many continue to suffer – on the basis of their religion, caste, or language should be remedied”.

Since access to governance is a means of addressing social disparities, Chandrachud observed: “Social mobilisation is a powerful instrument of bringing marginalised groups into the mainstream.”

Therefore, the majority decision to prohibit a candidate from conveying to voters “that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied,” he said, “is to reduce democracy to an abstraction”.

Violation of Right to Free Speech?

Another compelling reason cited by Chandrachud for disagreeing with the gag order proposed by the majority opinion is that it would violate the constitutional protection of free speech and expression enjoyed by candidates and political parties.

Given that this fundamental right is subject only to “reasonable restrictions” enacted by Parliament, Chandrachud said, “There is no warrant for making an assumption that Parliament while enacting Section 123(3) intended to sanitise the electoral process from the real histories of our people grounded in injustice, discrimination and suffering.”

Thus, even if Section 123(3) is assumed to have been drafted to bar candidates from discussing any identity-based issues faced by sections of voters, such a restriction would have failed the test of reasonableness and would therefore have been vulnerable to being declared unconstitutional.

Re-Defining ‘Corrupt Practice’

As a corollary, the minority judgement raised the bar for what constitutes a corrupt practice under Section 123(3). “Discussion of matters relating to religion, caste, race, community or language which are of concern to the voters is not an appeal on those grounds,” it said, adding, “What is proscribed by Section 123(3) is a candidate soliciting votes for himself or making a request for votes not to be cast for a rival candidate on the basis of his own (or of the rival candidate’s) religion etc.”

Pointing out that the Constitution contains provisions for the amelioration of disabilities and discrimination practised on the basis of various identities, Chandrachud said, “Discussion about these matters -- within and outside the electoral context – is a constitutionally protected value and is an intrinsic part of the freedom of speech and expression.”

But what if a candidate, without directly soliciting votes for himself, derives electoral mileage by inciting hatred between different groups of voters? There is a different provision for it, Section 123(3A), which deals with the promotion of enmity between different classes of citizens on the basis of any of the five identities by the candidate or anyone authorised by him.

And, as the minority judgment put it, “Section 123(3A) cannot be telescoped into Section 123(3). The legislature has carefully drafted Section 123(3) to reach out to a particular corrupt practice, which is even more evident when the ambit of Section 123(3A) is contrasted with Section 123(3). One cannot be read into the other nor can the text of Section 123(3) be widened on the basis of a purposive interpretation.”

Remedy Worse than Disease

Clearly, the literal interpretation of Section 123(3) made by the minority judgement is more thought through, while the purposive interpretation by the majority judgements offers a remedy worse than the disease. As the majority judgements with all their flaws are the law of the land, Indian democracy has been rendered more illiberal by its Supreme Court. Consider the anomalies that may arise in the upcoming election in Uttar Pradesh, if the majority judgements are seriously implemented.

However much they are of concern to the people of the state, no candidate can discuss identity-based issues such as Muzaffarnagar, Kairana, Dadri, Ayodhya, beef, love jihad, reservations and caste atrocities without falling foul of the widened definition of corrupt practice. The situation may be even more farcical in the other election-bound state, Punjab, where the very name of the ruling party, Shiromani Akali Dal, may be construed as an appeal that is forbidden.

Though it had raised expectations of undoing the damage done by its 1995 Hindutva judgement, the Supreme Court ended up aggravating the problem, despite all its rhetoric about the purity of the electoral process. If anything, with its sweeping attack on identity-based concerns, the Supreme Court has made a deeply political statement by privileging issues like development and nationalism over social justice.

(Manoj Mitta is the author of ‘The Fiction of Fact-Finding: Modi and Godhra’. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

Also Read: To Those Who Say Judiciary Can’t Interfere in Religion — It Can