Secularism Under Section 123 (3) of the Representation of Peoples Act

The Supreme Court of India recently in a very short of period heard and delivered several judgements of wide import, several of which were heard by a large bench of seven judges. One of those judgements involving the usage of 'religion' to appeal to the voters by a candidate invited much public and media attention. The decision of the court was much lauded for its progressive interpretation of Section 123 (3) of the Representation of Peoples Act, both by the media and public at large. In a political landscape fraught with communalism and other narrow-minded considerations this seen as a welcome move to cleanse the democratic elections to ensure the survival of constitutional ideals. In all this hubris something very fundamental about this judgement has gone unnoticed by everyone. The gravity of this misconception is too large to be brushed aside easily. Though on the face of it the judgement comes out as a progressive stance taken by the judiciary towards ensuring the elections to be free of parochial sectarian considerations, the overall outcome of the interpretation offered by the Court proves to be diametrically an opposite one at that. The jurisprudential error committed have widespread ramifications, not merely confined to the corrupt electoral practices that it sought to adjudicate. The spillover effect that this judgement can have over other legitimate democratic aspirations that find its way through freedom of speech and expression is the main concern that I wish to address here.
The fundamental issue that arose for the consideration is the scope and purport of section 123(3) of the representation of people act, more specifically the scope and application of the word "his" as used in the section.

(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:
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.

Section 123 of the Representation of People Act, 1951 provides for penal actions against corrupt practices that are defined under the section. Subsection 3 of the provision defines any action by the candidate or his electoral agent using religion, race, caste, community or language to seek votes for himself or using it to the detriment of another candidate. A seemingly straightforward definition, however, gave rise to confusion on whether the appeals made is deemed to be a corrupt practise under the section only when it is of the religion to which the candidate belongs or it is a wholesale ban against the use of religion to seek the favour of the voters. The issue before the court was to decide whether it is a corrupt practice to use religion in all its forms to appeal to the voter or it must be confined only to those appeals made by a candidate on the ground of his religion. The judgement of the majority, after going through the usual rigmarole of framer's intent, the legislative history and other paraphernalia, decided in favour of an interpretation that gave the section widest possible import resulting in a blanket prohibition on the use of religion in election. The dissenting judgement assumes much significance for it espouses correct stand in this regard.
Though the intention behind the prohibition of using religion, either to seek the favour or to the detriment of another candidate is laudable, the mechanism devised should not be so restrictive as to have detrimental effect upon other constitutionally guaranteed rights of the citizens. While the fact remains that the broad and purposive interpretation used by the Supreme Court to justify its conclusion to give a sweeping effect to the provision itself suffers from serious defects.
In any democracy the process of election is a democratic negotiation between competing groups of interests to have their views represented in the corridors of power. A minority, be it a language or a religion, might want to voice their concern against any issue that threatens their existence, for which elections are one of the best tool provided under constitution. It is through the elections they are given a possibility to voice their views either by electing someone as their representative or by pressurising the political parties to consider their views. The conclusion of the majority, in its aim to thwart unhealthy influence of religion in elections, has completely ignored the need for sufficient latitude in the interpretation of the provision so that such legitimate concerns are not curtailed. In this light, the overt reliance of the majority view upon the purposive interpretation is not right, since the inherent conflict that the resultant interpretation has with certain fundamental rights under Constitution of India. Surprisingly the majority has brushed this aside lightly, citing Jamuna Prasad Mukhariya vs. Lachhi Ram (1955) 1 SCR 608, where the similar arguments raised upon objections raised as against Article 19(1)(a) were rejected by the bench. Being a bench of seven judges, which is a rarity on its own, this was a golden opportunity missed by the court to reverse it. In the process the subtle line of difference that must be drawn between its aim to secularise the electoral process and protecting the rights like freedom of speech and expression has been lost.
What is surprising is the fact that the past decisions of the Supreme Court, which were considered and rejected in the present case, offers the apt perspective in this regard. The Supreme Court, in the case of Jagdev Singh Sidhanti v. Pratap Singh Daulta (1964) 6 SCR 750, perfectly draws the subtle distinction between using such parochial considerations for ulterior motives and a legitimate use as part of electoral process that I am advocating here. The relevant passage is extracted here

“The corrupt practice defined by clause (3) of Section 123 is committed when an appeal is made either to vote or refrain from voting on the ground of a candidate’s language. It is the appeal to the electorate on a ground personal to the candidate relating to his language which attracts the ban of Section 100 read with Section l23(3). Therefore it is only when the electors are asked to vote or not to vote because of the particular language of the candidate that a corrupt practice may be deemed to be committed. Where, however for conservation of language of the electorate appeals are made to the electorate and promises are given that steps would be taken to conserve that language, it will not amount to a corrupt practice.” [Emphasis Supplied]

The Dissent

In all those rejoicing and unexpected attention paid to the majority view is the feeble voice of the dissenting judges, which was penned by Justice Dhananjay Chandrachud. The dissent strikes a distinct note in stark contrast with the majority view by providing the appropriate context in which the issue must be adjudicated to begin with. In a multicultural society like India it is impossible to divorce social institutions like religion, culture, language and other formative identities while considering such issues. Above all, if one looks at the Constitution, unlike other foundational documents around the world, it is these elements that are sought to be protected in some form or the other. This is in spite of the fact that its ultimate aim is to promote secular fabric for the society without such differences. The drafters of the constitution recognised this inner conflict but knew well that for any member of the society to become a part of the society it is vital to recognise and protect legitimate aspirations of his identity, be it cultural, religious or linguistic. This assurance by the state can only be ensured when they are given protection from any encroachment upon its safe practice while also providing a chance for them to voice their concern. It also includes the opportunity for them to be a part of the governing structure of the society, which can but be a result of social mobilisation. An oppressed class of citizenry can be mobilized only on those terms upon which they fell oppressed in the process of election; it would be silly to suggest anything otherwise. The fundamental rights in all its form were made with the sole intent of providing this to all the members of the society, in spite of the apparent conflict that it could cause with the constitutional ideals of secularism amongst others, resulting in forging of an unique constitutional identity. Reading it independent of this forged identity would render it to mere abstraction. This has been rightly pointed out in the dissent in the following words

"Social mobilisation is an integral element of the search for authority and legitimacy. Hence, it would be far-fetched to assume that in legislating to adopt Section 123(3), Parliament intended to obliterate or outlaw references to religion, caste, race, community or language in the hurly burly of the great festival of democracy."

The majority view has committed a grievous error in extending its misconceived notions of secularism here. The concept of secularism, at least in the Indian context, cannot be read to mean a society that is devoid of institutions and differences like religion and language. Here, it would mean a cohesion that coexists with such differences. It is not an anachronism in a democracy as it is portrayed in this decision.
This unfortunate decision is another addition to the series of regressive judgements that the Supreme Court has delivered in the recent times. Being a judgement delivered by a large of bench of seven judges it is going to prevail for a long time in the future. However, I put my belief upon the resilience of the Supreme Court to get back again, given its glorious history.