Justice Thakur tilted scales in key cases banning divisive election appeals

He was clear that religion, race, caste, community cannot play any role in the electoral process

January 2, 2017 is likely to be remembered as another ‘Kesavanand Bharati’ moment in the history of the Indian Supreme Court both for the significance of the judgment prohibiting communal appeals for votes and the manner in which the judges split.

Although the judges explicitly noted during their hearing that they did not intend to review the court’s controversial 1995 ‘Hindutva/Hinduism is not a religion but a way of life’ judgment, Monday’s ruling will make it more difficult for politicians to get away with making appeals for votes on grounds of religion.

In Kesavanand Bharati, six judges voted in favour of the basic structure of the constitution which is beyond parliament’s amending powers, while six other judges said parliament’s amending powers had no limits, including the so-called basic structure.

But one judge tilted the scales in favour of basic structure, and he was Justice H.R. Khanna, who remains immortalised for his contribution long after that judgment.

Justice Khanna is considered to have tilted the scales because he found no inherent or implied limitations on the amending power unlike the other six Judges. Still, he sided with the majority because he held that limitations on the amending power only arose from the word ‘amendment’, and that the power of amendment under Article 368 does not include the power to abrogate the constitution, nor does it include the power to alter the basic structure or framework of the constitution.

In Abhiram Singh v C.D. Commachen (Dead), decided by the Supreme Court’s seven-judge constitution bench on Monday, something similar happened, with three judges on either side of the divide on what constitutes an appeal to religion, race, community or language, and whether such appeal should be deemed as a corrupt practice resulting in the annulment of an election, and disqualification of the successful candidate.

Again, a single judge tilted the scales in favour of secularism. The judge, the outgoing chief justice of India, Justice T.S. Thakur, has earned his place in history – by following in the footsteps of his illustrious predecessor, the late Justice H.R. Khanna.

Simple question at stake

The issue before the Supreme Court’s seven judge constitution bench was simple: Whether a candidate at an election could appeal for votes on the basis of the religion, race, community, or language of the voter, and still not invite the disqualification clause of the Representation of the People’s Act, 1951.

Four judges, namely Chief Justice Thakur, and Justices Madan B. Lokur, S.A. Bobde, and L. Nageswara Rao, said no. The three remaining judges on the bench, namely, Justices D.Y. Chandrachud, Adarsh Kumar Goel and Uday Umesh Lalit said yes.

While Justice Lokur delivered the main judgment, justices Bobde and Thakur delivered separate concurring judgments. Justice Chandrachud delivered his dissenting judgment, on behalf of himself and justices Goel and Lalit.

Justice Thakur, like Justice Khanna, agreed that the rival construction, advanced by the dissenting Judges, on what constitutes appeal to religion in an election campaign, might be equally valid; yet, he sided with the majority view, because he believed it –­­ rather than the dissenting one ­– advances the constitution’s commitment to secularism, which is now recognised as one of its basic features.

The seemingly intractable question before the bench was how to interpret the word “his” occurring in sub-section (3) of Section 123 of the Representation of the Peoples’ Act (RPA), 1951.   This provision reads as follows:

“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:

Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause”.

The majority judges held that the word “his” must be interpreted to mean the religion, race, caste, community, or language of the voter.   The dissenting judges, on the contrary, held that it should be so interpreted to mean the religion, race, caste, community, or language of the candidate, if the appeal is to vote in his favour, or that of his rival candidate, if the appeal is to vote against him. If either of these two ingredients are not satisfied, the so-called appeal on the basis of religion, caste, race, community or language, is not a corrupt practice, they reasoned.

The majority view

Justices Madan B. Lokur and L. Nageswara Rao held that for maintaining the purity of the electoral process, sub-section (3) of Section 123 of the RPA must be given a broad and purposive interpretation. They relied on the history of the law, and the social context of the legislation, to drive home that fact that the intent of Parliament in 1961, while amending the law, was not to restrict the meaning of “his” to the candidates, but to meet the challenge of communalism head-on.

Justice S.A. Bobde, in his concurring judgment, held that the word “his” refers not only to the candidate or his agent but is also intended to refer to the voter.

Parliamentary intent was to clearly proscribe appeals based on sectarian, linguistic or caste considerations, he suggested.

Chief Justice Thakur tilted the scales in favour of purposive interpretation. According to him, Justice Lokur’s view is more in tune with the purpose and intention behind the enactment of Section 123(3) of the RPA. Section 123(3), as it read before the amendment of 1961, required only that the appeal must be systematic. The 1961 amendment sought to omit the word “systematic”, so that non-systematic appeals based on religion also could be targeted. If “systematic” means repeated appeals, the amendment sought to make even a single appeal on the ground of religion, race, caste, community or language sufficient to annul an election. Significantly, the dissenting judges had no quarrel with this reasoning.

The 1961 amendment also included the words “prejudicially affecting the election of any candidate”. Justice Thakur rejected the restrictive reading of “his”, saying it will make permissible what was clearly impermissible under the unamended provision.

Even if the two interpretations of the word “his” are correct, Justice Thakur held, the one closer to the secular philosophy of the constitution must be chosen. Paragraph 23 of his judgment is the key. It says: “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 Thakur was clear that religion, race, caste, community, or language cannot be allowed to play any role in the electoral process and that an appeal made on any of those considerations would constitute a corrupt practice.

The dissenting view

Justice Chandrachud, in his dissenting opinion, held that in numerous provisions, the constitution has sought to preserve a delicate balance between individual liberty and the need to remedy histories of injustice founded upon immutable characteristics such as religion, race, caste and language.

In other words, because the constitution is not indifferent to issues of religion, caste or language, and recognises that they are crucial to maintain a stable balance in the governance of the nation, there can be no wall of separation between the state on the one hand, and religion, caste, language, race or community on the other, he reasoned.

Holding that electoral politics is about mobilisation, he suggested that parliament could not have intended to obliterate or outlaw references to religion, caste, race, community or language in the hurly burly of the great festival of democracy.

The “his” in Section 123(3) cannot validly refer to the religion, race, caste, community, or language of the voter, Justice Chandrachud reasoned. Therefore, he suggests that if at all a change in the law is required, only parliament can bring this about.

Why the dissenting view didn’t carry

Justice Chandrachud and his two dissenting colleagues fail to notice that appeals on the basis of the candidate’s religion, and the religion of the voter cannot be validly distinguished. If the first appeal is bad, how could the latter appeal be valid? Supposing the religion of the candidate and that of the voter is the same, then how is an appeal based on religion, to be construed?

Justice Chandrachud does not answer this question, but confuses the issue with the larger issue of discrimination on the basis of these prohibited grounds. The law does not bar campaign speeches from referring to issues of discrimination on the basis of any of these grounds. It only bars “appeals” on the basis of identity, marked by any of these grounds, and seeking votes in one’s favour or voting against a rival candidate, merely on the basis of that identity. Mere reference to these issues does not make it an appeal.

Justice Chandrachud understands and articulates this, but ends up confusing “appeals” with non-appeals, by assuming that the courts are likely to consider non-appeals as appeals if the candidates touch any of the prohibited grounds because they happen to be electoral issues, because of related issues of discrimination and inequality.

The majority judges rightly did not find this argument of the dissenting Judges worthy of any response.

Interestingly, Justice Y.V. Chandrachud – father of Justice D.V. Chandrachud, who authored the dissent on Monday – was part of the six dissenting judges in the Kesavanand Bharati case.

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