An Analysis of Election Judgment of Supreme Court of India [Abhiram Singh v C D Commachen]

“At the bottom of all the tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit  of paper…”

Winston Churchill

The Supreme Court in a decisive judgment on the interpretation of “corrupt practices” in elections has set,  yet another high standards in its efforts to maintain purity of election process in India. The seven judge Bench of the Apex Court through Justice Madan Lokur delivered its 4:3 majority judgment on interpretation of Section 123 (3) of the Representation of People’s Act 1951.

The constitutional issue in the case primarily pertained to the interpretation of ‘his’ in Section 123 (3). The important part of Section 123 (3) is reproduced below:

(3) 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 or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:

The question before the Court was whether the word “his religion” referred only to the candidate (and his agent etc), or whether it included the person to whom the appeal was addressed i.e. the elector.

The majority judges while adopting a broad and purposive interpretation of the provision, held that the word “his”  referred in the Section refers to both the religion of the candidate as well as that of the elector. The minority 3 judges through Justice D.Y. Chandrachud used the narrow interpretation referring  “his” only to the candidate/his agent/any person appealing with their consent. In effect, it has held that appeals to caste, religion, language, and community be kept out of the electoral process.

The judgment assumes significance, not only as one that further strengthens the constitutional ethos in terms of secularism and democracy, but also is a decision reflecting the right social context, intention of the Parliament and delivered at an appropriate time.

The Right Social Context and the Intention of the Parliament.

It is welcoming that the Court has considered not only the text of the law but the context in which the law was enacted and the social context in which the law had to be interpreted. A statute may not always fully reflect upon the intended benefits to the people that it seeks to achieve. Therefore, while interpreting such legislations, a pragmatic view is required to be taken and the law has to be interpreted purposefully and realistically so that the benefit reaches the masses.

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. Any electoral law needs to be understood, interpreted and implemented in a manner that benefits the common people and the approach adopted by the Court in this case, is justifiable in today’s social, technological and political context. The 1951 Act always have wider purposes or object to accomplish, within the complexity of the diversity of the country and therefore the judgment has served itself as a step in the right direction.

It is worthwhile to refer to an amendment to IPC in the year 1961(Section 123 of the RP Act was also amended in the same year). Section 153 A was inserted then into the IPC, which related to promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. The passing of amendment in the IPC is relatable to the 1961 amendment to the RP Act, which make both the amendments complementary and consequential.

Both these steps reflect upon the intention of our Parliament to grapple with the necessity of curbing communalism, separatist and fissiparous tendencies during an election campaign.  As Court opined, “it is during electioneering that a candidate goes virtually all out to seek votes from the electorate and Parliament felt it necessary to put some fetters on the language that might be used so that the democratic process is not hampered.” The Court, referring to the legislative history behind the enactments have thus rightly upheld the constitutional validity of the Section, through its tools of interpretation.

Appropriate timing

The judgment is also timed appropriately as the potential to access to millions, already available to a candidate through print and  electronic  media,  has expanded through  the  internet  and  social  media  as  well  as  mobile  phone technology. Therefore, it is important to ensure that the freedom of speech and expression available to a candidate or anyone on his behalf is not exploited by making an appeal on the ground of religion with a possibility of disturbing the even tempo of life.

Nevertheless,  even as the majority decision holds the baton for any judgment, it is important to reflect upon the dissent raised by three judges of the seven judge Bench in this case. The dissenting judgment written by Justice D.Y. Chandrachud has stressed upon the importance of narrower approach in contrast to the broader and purposive approach adopted by the majority. At the heart of disagreement with the majority judges, lies the idea of the identity of an Indian citizen on which the dissenting opinion is based. According to the dissenting judge, the Constitution recognises the position of religion, caste, language and gender in the social life of a nation, and that the society is associated with histories of discrimination and injustice on the basis of these defining characteristics. To bring the marginalised to the mainstream, governance and social mobilisation are powerful instruments. Therefore, to prohibit and penalise a person to speak of the legitimate concerns of citizens that the injustices faced by them on these grounds is to reduce democracy to an abstraction. The judge opined that humans are always situated within their social contexts and in India these contexts are characterised by religion, language, caste and community. In his words, these remained and continue to remain “the sites of inclusion and exclusion, privilege and oppression, domination and resistance, power and discrimination,” and therefore constitutional law could not remain oblivion to this history, doing so would wrench the individual out of his/her context.

The minority judgment though raises some crucial points reflecting upon the values of the individual in a society, do not necessarily reflect upon the object the elections and the statute seeks to achieve. While both the majority and minority articulate entirely valid ways of protecting the citizen’s concerns in his society, the majority judgment reflects upon the statute as a means to achieve the ideals of democracy, while minority reflects upon the reality that is to be accounted.

Secularism is an ideal in our Constitution which political parties have ignored repeatedly. While the Supreme Court has shown the way, it is now upon the political parties in India and their candidates who has the ethical responsibility to uphold this decision and thereby overcome the hurdles in the practise of secular ideals. Only this would pave the way for justice and peace in its truest sense. As for the Courts, it is a matter of evidence for determining whether an appeal has at all been made to an elector in violation of the Section 123 (3) of the RP Act. As regards that, it will be a tough job to decide where the line of permissible and impermissible political speech will ultimately be drawn in any given case.

Nonetheless, what is important is that the reflection of recent cases from the Supreme Court, has been that the swinging of the pendulum is towards giving a purposive interpretation to  statutes. Such a shift towards purposive construction is today not in doubt, keeping in mind the faster and sustainable process of development that is taking place in the Indian society. In the current context, especially when the Election Commission is looking forward to electoral reforms which is more inclusive, transparent, secular, truly democratic, free and fair, such a purposive interpretation is amply justifiable.

Relevant Portion of Syllabus:

GS 2: Representation of People’s Act, Significant ­Provisions and Basic Structure.

Law : Constitution and Constitutionalism: Distinctive Features of the Constitution

To read the full judgement click here