Udit Bhatia discusses a landmark ruling concerning the conduct of elections and its potential to stifle democratic debate.
On 2nd January 2017, a Constitution bench of the Indian Supreme Court pronounced a landmark judgement concerning the Representation of the People Act. The core question in this case centred around Section 123(3) of the Act, which states:
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 (emphasis added) 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 interpretive question before the Court in this case was whether the ‘his’ emphasised above ought to be understood as a reference only to the speaker such as the candidate, his agent, or a person acting with the consent of the candidate or his agent, and his opponent or whether it also included the addressee of the candidate’s appeal. A narrow reading would imply that the above provision only prevented a candidate (or his agent etc.) from appealing to his or his opponent’s religion, race, caste, or community while trying to garner support for his campaign. On the other hand, a broad reading would suggest that the candidate could appeal neither to his or his opponent’s religion or race and was also prohibited from appealing to the elector’s religion, race, caste and community.
The Court ruled 4-3 in favour of the broad reading, thereby proscribing appeals by candidates to the abovementioned characteristics of electors. According to Justice Lokur, an examination of the Act’s legislative history demonstrates that it emanated from recognition of the ‘necessity of curbing communalism, separatist and fissiparous tendencies during an election campaign’. He argued that restricting such tendencies was necessary to strengthen democracy. In his concurring opinion, Chief Justice Thakur emphasised that secularism was a basic feature of the Indian Constitution. This implied that ‘religion will not play any role in the governance of the country which must at all times be secular in nature’. For him, this ruled out the narrow interpretation of the Act, since ‘An interpretation which has the effect of eroding or diluting the constitutional objective of keeping the State and its activities free from religious considerations, therefore, must be avoided’.
Justice Chandrachud opposed the notion that strengthening democracy required exclusion of appeals based on characteristics of the elector, such as race and caste. This, he argued, would ‘reduce democracy to an abstraction’. After all, electors legitimately expect that discrimination and deprivation they have previously suffered, or continue to suffer, on the basis of religion, caste or language, ought to be remedied. Since access to governance is a method of addressing such disparities, candidates who speak to legitimate concerns grounded in such injustice cannot be excluded from the political process. Further, discussion upon such matters, both, within and outside the electoral context, are crucial to the democratic process.
Justice Chandrachud emphasised that the Indian Constitution itself ‘recognizes the position of religion, caste, language and gender in the social life of the nation’. It acknowledges the injustices perpetrated against persons on the basis of these characteristics. It allows, for instance, the state to make special provisions for the advancement of ‘socially or educationally backward classes of citizens’, and for communities listed as ‘scheduled castes or scheduled tribes’. Similarly, while prohibiting discrimination on the basis of such features, the Constitution also empowers the state to make provisions for the reservation of appointments or posts in favour of any backward class of citizens which is not adequately represented in the services under the state. Another constitutional provision, Article 30, specifically recognises the rights of religious minorities to establish and administer educational institutions of their choice. As a result, it would be unfair to suggest that the Indian Constitution envisaged the complete exclusion of things like religion or caste from political life.
Critics of the majority judgment have rightly pointed to the absurdity of banning appeals to voters’ caste and religion. After all, as Justice Chandrachud pointed out, these can be legitimate categories for political action aimed at rectifying social injustices. There is, however, an additional rationale one might give for allowing such appeals in the political process. In appealing to a particular social group, candidates can do either or both of two things. They might appeal to certain actions or omissions that are warranted in relation to those groups. For instance, the appeal that a certain group ought to be the beneficiary of affirmative action, or ought to be exempt from some law that applies to other communities. On the other hand, their appeal might play a role in constituting that social group. To prohibit appeals to characteristics like caste and religion not only helps preserve status quo on the socio-economic status of those groups but also blocks attempts at reconfiguring the groups themselves. Constitutional categories like ‘other backward classes’ or ‘scheduled caste’ have to come to serve as potent categories for social mobilization, in part because of campaigns for social justice that simultaneously constituted these categories as their audience. When the democratic process allows for appeals to such groupings, it allows for them to be configured, reconfigured and contested, rather than leaving the social world as it exists.
Udit Bhatia is a doctoral student in Political Theory at the University of Oxford.