No form of government is perfect but these imperfections cannot be remedied by "judicial redrafting" of a legislative provision, the Supreme Court, in its minority verdict, today said while holding that the term "his religion" meant the faith of candidates only in the election law.
The seven-judge bench, in a majority 4:3 verdict, took a view that term included candidates, appealing for votes on the basis of religion, caste and other issues from politics and their agents and voters as well.
"No form of government is perfect. The actual unfolding of democracy and the working of a democratic constitution may suffer from imperfections. But these imperfections cannot be attended to by an exercise of judicial redrafting of a legislative provision. Hence, we hold that there is no necessity for this court to take a view at variance with what has been laid down," Justice D Y Chandrachud, who wrote the minority verdict, said.
Justice Chandrachud, writing for himself, Justices A K Goel and U U Lalit, said that Parliament has been cognisant of the provisions in question and the court should not resort to judicial redrafting of a statutory provision as no form of governance is perfect.
"Despite this, the provision has remained untouched though several others have undergone a change. In the meantime, elections have been held successfully, governments have changed and majorities have been altered in the house of Indian democracy.
"There is merit in ensuring a continuity of judicial precedent. The interpretation which has earlier been placed on Section 123(3) is correct and certainly does not suffer from manifest error," he said.
Dealing further, the minority verdict said that no form of government is perfect and the actual unfolding of democracy and the working of a democratic constitution may suffer from imperfections.
"But these imperfections cannot be attended to by an exercise of judicial redrafting of a legislative provision. Hence, we hold that there is no necessity for this court to take a view at variance with what has been laid down," he said in his 55-page dissenting judgement.
The minority verdict held that the earlier view that his religion meant the religion of candidates only did not suffer from any "manifest error".
(Reopens LGD48)
Justice Chandrachud also said "social mobilisation is a powerful instrument of bringing marginalised groups into the mainstream" and the electoral discussions on legitimate concerns of citizens, facing injustice on the ground of religion, race, caste, community or language, cannot be barred as it would "reduce democracy to an abstraction".
"To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction. Coupled with this fact is the constitutional protection of free speech and expression in Article 19(1)(a) of the Constitution," he said.
Justice Chandrachud, however, said that an appeal by a candidate on the ground of 'his' religion, race, caste, community or language is a solicitation of votes on that foundation would constitute an appeal on the ground of religion.
"However, the statute does not prohibit discussion, debate or dialogue during the course of an election campaign on issues pertaining to religion or on issues of caste, community, race or language. Discussion of matters relating to religion, caste, race, community or language which are of concern to the voters is not an appeal on those grounds," he said.
