The Indian Express - January 11, 2017
Stuck between 4 and 3
The SC verdict on the RPA is about reasonable restrictions on free speech. But appeals to identity by persecuted groups should not be seen as a violation of the principles of secularism
Written by Indira Jaising
At the heart of the case relating to the interpretation of Section 123 of the Representation of People’s Act, 1951 (Act), is the issue of free speech. Section 123 does impose restrictions on speech and hence it is necessary to understand the limits of those restrictions and the purpose of the law. The Act is intended to ensure free and fair elections in a democracy where universal adult franchise is guaranteed by Articles 325 and 326 of the Indian Constitution. Universal adult franchise itself is based on our citizenship and hence, when we vote, we vote as citizens.
The Act has several provisions to guarantee free and fair elections, giving a constitutional status to the Election Commission of India. Certain practices were categorised as “corrupt practices” under Section 123 of the Act, one of them being appeal by candidates for votes on the grounds of religion, race, caste, community or language or the use of, or appeal to religious symbols. A corrupt practice, if proved, would entail to a declaration of the election of such candidate to be void under Section 100 of the Act.
The Constitution Bench delivered the judgment in the much-awaited Hindutva case on January 2 through a majority of 4:3. On the face of it, the entire judgment turns on a semantic issue, namely what is the meaning to be given to the expression “his religion” used in Section 123. Does it mean that only an appeal by the candidate himself or herself based on the religion of the candidate is a corrupt practice? Or would an appeal made by a third party, say, a party leader, at an election rally based on any religion also amount to a corrupt practice? The issue was seminal since the Supreme Court itself, in previous judgments, has held, for example, that only appeals based on “his religion” — that is the religion of the candidate, including the rival candidate — would amount to corrupt practice (Prabhoo case: 1996 (1) SCC 130). The absurd consequence of such an interpretation would be that the candidate could not make such an appeal but a party leader could at his election rally. Apart from the absurd consequence that would follow, the critical issue was this would leave political parties free to canvass for a theocratic state through their manifestos and election speeches. Using a purposive interpretation, the majority held that the expression “his religion” refers to the religion of “(i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector” and this interpretation is in consonance with the purpose of the Act that is “maintaining the purity of the electoral process and not vitiating it”. Former chief justice, T.S. Thakur, went a step further and justified the purposive interpretation in the secular framework of India that acts as a limitation on free political speech when he noted that in interpreting Section 123 (3) of the Act “which one of the two interpretations ought to be preferred by the Court keeping in view the constitutional ethos and the secular character of our polity.”
Does this prevent social mobilisation as suggested by the minority judgment in the following words: “Social mobilisation is an integral element of the search for authority and legitimacy. Hence, it would be far-fetched to assume that in legislating to adopt Section 123(3), Parliament intended to obliterate or outlaw references to religion, caste, race, community or language in the hurly burly of the great festival of democracy.”
The majority judgment nowhere suggested that all references in electoral speeches to religion or caste etc would amount to a “corrupt practice”. In fact, during the arguments it was specifically suggested that if the appeal was intended to correct a historical or constitutional wrong or was intended to preserve and protect fundamental entitlements under the Indian Constitution, it would not be a corrupt practice. This is what the precedents of the Supreme Court itself have indicated.
The problems arose when the SC held that an electoral speech by a party leader stating that elections were being fought in the name of the Hindu religion and Hindutva was not a corrupt practice as consent of the electoral candidate to the speeches of the party leader was not proved (Manohar Joshi case: 1996 1 SCC 169). The court stated that “what is relevant is the candidate and not the plank of the political party”, “requisite consent of the returned candidate or his election agent which is a constituent part of the corrupt practices under sub-sections (3) and (3A) of Section 123, and an ingredient of the ground under Section 100(1)(b) has nowhere been pleaded in the election petition either in connection with the allegations based on the speeches” and “a mere statement that the first Hindu State will be established in Maharashtra is by itself not an appeal for votes on the ground of his religion but the expression, at best, of such a hope. However, despicable be such a statement, it cannot be said to amount to an appeal for votes on the ground of his religion”.
This is what gave rise to two grave concerns, can a political party in its manifesto depart from the secular foundations of the Constitution and claim to set up a Hindu, Muslim or Christian state? It is this question that Justice Thakur attempted to answer when he insists that the secular foundations of the Constitution are not negotiable, whether by a candidate or by a third party.
While Pratap Bhanu Mehta (‘High principle, dubious law’, IE, January 4) mentions that respect for precedent gives legitimacy to our judges, he forgets that the minority judgment does not refer to a host of precedents which were cited to point out legitimate references to religion and caste and illegitimate references in political speeches. It is painful to see the use of the language of the oppressed and historically discriminated to justify illegitimate references to religion, caste, etc.
Speech that is protected and will not be a corrupt practice is the one anchored in the goalpost of the Indian Constitution, that is secularism. India is a secular state, no matter what understanding one may have of what is secular — at the very least, it is not theocratic. During arguments, precedents illustrative of permissible and impermissible references to religion, caste etc., were brought to the notice of the SC. An attempt was made to distinguish between permissible speech and impermissible speech and it was submitted before the court that: “Not all reference to religion, race, caste, or language in an election speech is corrupt practice. A reference to a group dicriminated on the ground of religion, race, caste, or language coupled with the promises to remove the discrimination and correct an imbalance will not be an appeal on the ground of religion since the thrust of the speech will be to promote secularism.”
Hence, an appeal on the grounds of religion, race, caste, or language can legitimately be made on behalf of a discriminated group whether based on religion, race, caste, language or sex, coupled with the promise to reverse the discrimination. Hence, when the appeal is contextualised in a rights framework, in particular fundamental rights, and for the reversal and redressal of constitutional wrongs it would not fall under the meaning of corrupt practice within S.123(3). Similarily, an appeal to protect and promote the rights of a persecuted group would not be an appeal on the grounds of religion, race or caste.
Neither the majority nor the minority made any effort to deal with this issue or record these submissions. Indeed, it appears that the majority and the minority were not speaking to each other and who knows, this could be because of the limitation of time and the fact that the CJI was due to retire on January 3, the judgment being delivered one day before his retirement in haste by all the judges. Neither made an effort to convince the other of their point of view.
If the case was seen for what it was, one about free speech, both the minority and majority would have been compelled to address the legitimate limits of free speech for indeed, the Constitution does impose limits that have consequences for the secular fabric of the country.
The writer is former additional solicitor general of India. She was an intervener in the case on behalf of Teesta Setalvad and others