Judicial push backed by legislative intent key to Indian politics reforming itself

New Delhi [India], Jan.4 (ANI): The New Year saw the Supreme Court of India passing a judgment that has genuine implications on the business of politics. A thorough reading of the judgments given by the 7 judges reveals some very interesting points of discussion. Two questions plagued the Justices: firstly, what method of legal interpretation should decide the scope and meaning of Section 123(3) of the Representation of the People Act, 1951 ('the Act'); a literal or a purposive contextual interpretation. Secondly, what is the Constitutional position on the balancing of diverse interests with the secular nature of our polity?

 

Justice Madan B. Lokur (and Justice Rao and Justice Thakur), who represented the majority opinion, answered these questions after beautifully tracing the legislative history of the Act and the precedents under the same. The majority opined that a purposive interpretation was necessary keeping in mind "the social context of Section 123(3) and today's social and technological context" (Paragraph 46 of his judgment). He also stated that since S.123(3) was introduced as an amendment to the Act around the time that Section 153A of the Indian Penal Code was introduced (prohibition on promoting enmity between groups on various grounds), in Parliament all those years ago, they must be read together. It was the legislative intent to prevent "fissiparous, communal and separatist tendencies". (Para 28).

There was no fundamental right to be elected, and therefore Article 19's protection in the Constitution, had no bearing on a candidate. Candidacy was a special right that came with conditions of conduct. Justice S. A. Bobde, added on to this stating that Section 123(3) protected the entire transaction; the voter's right to vote and the candidate's pitch. (para 2 of his judgment). Any appeal made to an elector by a candidate/his agent on the ground of religion, race, caste, community, or language of either the candidate, his agent or the elector, amounts to a corrupt practice, was laid down.

Honourable Justices Goal, Lalit and Chandrachud, who dissented, brought out how secular discourse and politics did not automatically neglect the guarding of special interests based on the grounds listed above. The Constitution enshrined several protections to ameliorate people disadvantaged based on these grounds. Based on this, the dissenting judges believed that there was merit in continuing the judicial position that the law only prohibited a candidate from seeking votes based on his religion etc.

One issue with the judgment is the practical implications "any appeal". When candidates make pitches to the people, the language and mediums they use will come under scrutiny so that it does not fall foul of this judgment. The Court remained silent on providing guidelines on how to determine this, stating that "it is a matter of evidence". Not providing some guiding principles or tests for determining whether language used will constitute an appeal on non-secular or divisive grounds, has left the matter not fully resolved, and open to re-litigation. The line between mere discussion and any appeal must be drawn.

There is truth the legal reasoning of all seven judges. Given how Indian politics has largely been a power protecting exercise, the question we must answer impartially is, have diverse interests been protected? Indian politics exemplifies what the Greek playwright Aristophanes wrote in the play "Knights", "to win the people, always cook them some savoury that pleases them."

No political party anywhere in India can claim that they are free from accusations of pandering to a stratum of voters. The two major ruling parties, BJP and the Congress, at various points in history, have had allegations of being pro - Hindutva or pro - Muslim levied against them.

In 2014, India recorded its highest voter turnout of 66.4%. One of the reasons for this was a desperate need in radical change in policy. This judgment is a big boost to the modern Indian voter, as well as a reminder that Indians irrespective of their background, have a lot of common interests in need of protecting: better infrastructure, a fairer tax regime, access to education, job opportunities, proper wages and working conditions, and accountability of the Government to name a few. MPs and MLAs should not be asked what they are being done for a given section, but what they are doing for Indians entirely. This judgment views the election process in entirety, and scrutinises the position of the voter. If we are truly to be a secular nation, our leaders must be elected through a secular mechanism. Gaining votes based on parameters such as religion, deviates attention on more essential questions of common development.

The multi-party system was adopted to represent the myriad interests in India. There are sections of society who have been denied basic human rights and their needs merit genuine representation and discussion. The judgment will have a positive implication on this if it is applied in good faith and in true sense of its wordings. It will motivate parties to speak policy to the people's who's interests it seeks to represent. It will dissuade parties from asking people for votes based on fear of being marginalised. The judgment could change the political dialogue of the country.

Religion and language should be deeply personal and should not determine how people interact with one another. The concept of caste and community discrimination should hold no value in social interaction. An election is not about the candidate alone. It is about the vision the candidate has for his given constituency and the needs of the voters (who are of different backgrounds) in that constituency. Without a judicial push backed by legislative intent of this kind, politics will never reform itself.

This is not an idealistic fancy or wish. This is a legitimate issue that plagues our Governance structures today. To have free and fair elections, parties cannot be allowed to divide the electorate.