Abhiram Singh Vs C.D.Commachen: An Inconsistent Doctrinal Application of Secularism

‘Secularism’ in its written form found its part in the Indian Constitution only after an amendment while the presumption of its presence was taken axiomatically by us. In spite of the long journey that the idea of secularism has travelled, from being found as a part of the basic structure of constitution by the Supreme Court in the famous S.R.Bommai’s case, it still lacks a doctrinal ‘rationality’ in its application. The recent Constitutional bench decision of the Supreme Court, Abhiram Singh Vs C.D.Commachen, interpreting Section 123 (3) of the Representation of People Act has furthered this effect. Rather than the ‘pragmatic’ take that the Constituent Assembly itself had about the role of religion in the country’s public life, the judgment takes a pedantic and mechanical view that frustrates several important underlying thought process that went into drafting the constitution. The issue before the court in this case was to interpret the content and scope of Section 123 (3) of the Representation of People Act, 1951 that defines what constitutes ‘corrupt practice’. More specifically the constitution bench was formed to determine whether 

1. the word ‘his’ that occurs in the section would imply restriction upon the candidate and his authorised agents from making any appeals on the ground of the religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector (a broad interpretation) or
2. expression “his” in Section 123(3) must mean the religion, race, community or language of the candidate in whose favour an appeal to cast a vote is made or that of another candidate against whom there is an appeal to refrain from voting on the ground of the religion, race, caste, community or language of that candidate (restricted interpretation)

The majority view took to the broadest interpretation possible and included all restricted appeals made by a candidate within the sweep of corrupt practice under Section 123 (3) of the Act. Without concerning myself with other interpretational fallacies in the view delivered by the majority I am analysing here the conception of secularism enunciated by the majority. The interpretation of the court that all kinds of appeal made by the candidates or their agents, while canvassing for elections, as corrupt practice depends upon a distinct and paternalistic application of secularism that presumes certain naivety upon the voters. This approach requires the court to exercise its discretion to determine what constitutes corrupt practice which inherently introduces an unequal application of secular principles in electoral practices. It is in this context I propose to show how the present judgement furthers a doctrinal inconsistency with no precise identification of what constitutes secularism that can be identified by it. 

In the past, on one end canvassing on the basis of caste, namely, Rajput; issuing a Sikh Hukamnama for votes were found by the court to be corrupt practice, on the other end even an appeal in the name of Hindutva were found as not an appeal in the name of religion. However, if one notices, the judiciary has sought for a context specific adjudication which does not leave sufficient latitude for a principled application.  In fact, the same court which found Hindutva as an appeal to religion, later took a view that depending upon the context such an appeal can be held to be an appeal to religion. The present constitution bench decision ends up furthering this effect by its rhetoric engagement of the term ‘his’ and its content. This hides behind its reluctance to recognise the distinctive practice of religion that India has evolved over the period. By declaring that no kind of appeal to religion can be made it has essentially lowered the bar for prosecution under the section. Rather than formulating test which puts forward a contextual adjudication of any anti-secular appeals made by candidates or their agents the blanket rejection shows a reluctance of the court to engage with what it thinks to be divisive. The wrongful assumptions drawn by the judgment here to arrive at this conclusion are as follows

• Firstly, the electoral activity does not constitute a form of democratic public reasoning through which the general public could exercise their political choices, be it religion, language etc. The majority judgment clearly draws a line separating the religion and elections failing to recognise the symbiotic relationship that exists between the democratic inclusion of vulnerable minorities and the freedom to array an opinion in its favour. Words of Chandrachud J in his dissenting opinion is revealing in this regard

“Electoral politics in a democratic polity is about mobilisation. 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.” [Paragraph 20]

Therefore, it is not always the case that any appeal made is religiously divisive. People, cutting across such religious differences, might see a merit in such an appeal and could possibly vote for them. Therefore, it would be wrong to assume that any appeal which is divisive is necessarily antithetical to the principles of democracy.

• Secondly, the mischief that is sought to be curbed here is the hate speech and the presumption that a different and a even more stringent standard is required to regulate the electoral speeches. In fact none of the judgments delivered by the majority deals with the effect that the such a conclusion could have on the freedom of speech and expression.
• Thirdly, there is a underlying paternalistic attitude that drives the court to presume that people are gullible enough to be swayed by emotions and rousing of passions by such speeches that it would interfere with the conduct of free and fair elections. Lokur J. quotes with emphasis the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra wherein a similar presumption was made in the following words 

“Our political history made it particularly necessary that these differences, which can generate powerful emotions, depriving people of their powers of rational thought and action, should not be permitted to be exploited lest the imperative conditions for the preservation of democratic freedoms are disturbed.” [Emphasis Supplied]

This justification based on peculiar history in fact counterintuitively interferes with the exercise of free choice and agency by the voters themselves.

• Fourthly, when it is permissible for the formation of political parties on religious lines it is not logical to state that they cannot be allowed to form the public opinion on religious grounds.

The judgement in its earnestness to cleanse the system from the sectarian appeals during elections has failed to recognise the important distinction that is required to be drawn between the religion playing a role in the actions of the state as against the amassing of public choice to protect the interests of particular section of the community. If at all this is to show an underlying intention of the court to show a departure from a principled and equal engagement of all religions to a complete disengagement from all things that has elements of religion, it is not clear from the words of the majority. Even otherwise, the clear church-state ‘wall of separation’ as practiced by the western democracies does not find any normative support from the Indian practice of secularism. This has been found by the court to be so in the past. The Delhi High Court’s decision rejecting the challenge government’s decision to celebrate the salvation of Lord Mahavira of Jainism clearly enunciates this principled engagement of the state on all matters that concerns with religion. The court in this regard approvingly quotes the then Vice-President Dr. Radhakrishnan as follows "I want to state authoritatively that secularism does not mean irreligion. It means we respect all faiths and religions. Our State does not identify itself with any particular religion." The precise distinction that must drawn between the appeals that are potentially divisive and those that are genuine rallying of public opinion to the cause of a particular section of the society gets muddled in this overarching application of secularism.

A Pragmatic Approach

Evidence from the Constituent Assembly debates clearly demonstrates that the choice made by the Constituent Assembly at various instances, like not including the word ‘secular’ explicitly in the constitution, non-inclusion of the draft provision against religious conversions (see here), is not from such a myopic view of the democracy that forsakes diversity for a mechanical subscription to the idea of secularism. Though it was agreed upon by everyone that India would be a secular state the question over what form of secularism that it would take was subject to extensive debate by the assembly. Amongst the extreme views from both the ends of spectrum it proved to be a contentious issue. As Nehru remarked, it was the problem of “creating a secular state in a religious society”. The interpretation of secularism by the Supreme Court in the present case is similar to the stand taken by few members of the assembly that the state must completely disassociate itself from religion. In what is somewhat of an exaggeration one of the members Guptanath Singh stated that “The state is above all gods. It is the god of gods. I would say that a state being a representative of the people, is god himself” (CAD-VII, p. 865). Another member Tajamul Hussain demanded that “No person shall have any visible sign, mark or name, and no person shall wear any dress whereby his religion may be recognised” (CAD-VII, p. 819). This is eerily similar to the raging debates that happened when France banned burqa. However, this form of secularism was ultimately rejected in favour of a principled engagement by the state in specific spheres of public activity as it is required. Given the socio-political difficulties such as caste and other forms of regressive social phenomenon that intertwines with deeply entrenched religious beliefs, it required a nuanced and pragmatic understanding of secularism. The rejection of suggestions to import non-establishment clause from US Constitution precisely points to this. In the words of K.M. Munshi, “We are a people with deeply religious moorings. At the same time, we have a living tradition of religious tolerance-  the result of a broad outlook of Hinduism that all religion lead to the same god… In view of this situation, our state could not possibly have a state religion, nor could a rigid line be drawn between the state and the church as in the US”.

The historical reasons could possibly be shown as a causative force for this interpretation. It is yet a parochial interpretation constricting the plausible democratic and plural reasonings that will inevitably arise in a democracy. The discussion above is to highlight the restricted imagination of the society and its relationship with the state. The state can play the role of both a reformer as well as an aid for the spiritual requirements of its people. What is required is the acceptance of the possibilities for plural reasonings that fosters the growth of democracy, the big picture.