Following the tradition of pronouncing landmark judgments on retirement, a seven-judge Bench under Chief Justice TS Thakur on Monday reaffirmed the secular character of the Indian State, ruling that election candidates cannot seek votes on the grounds of the religion, caste, creed, community or language of voters. Chief Justice Thakur, judges SA Bobde, Adarsh Kumar Goel and L Nageswara Rao and Madan B Lokur formed the majority opinion. Three judges — Adarsh Kumar Goel, UU Lalit and DY Chandrachud — favoured a narrower interpretation and refused to go beyond what Parliament has explicitly stated.
According to Section 123 (3) of the People’s Representation Act of 1951, no candidate or his agent can appeal for votes on the grounds of religion, race, caste, community or language. Any violation of this would be deemed a corrupt practice under the law leading to disqualification of the candidate.
Despite the law, India’s electoral process has been hijacked by religious fanatics, obscurantist casteists and communalists, who ask for votes not on the basis of party manifestos, competence or integrity of a candidate, but in the name of religion, caste and community, and political groups distribute tickets based on these narrow considerations.
This historic verdict could help us cleanse the electoral process and reduce the influence of religion in our polity. The BJP must treat this verdict as a setback in the Supreme Court after the decisions on the National Judicial Appointments Commission and quashing of president’s rule in Arunachal Pradesh. The case reached the apex court after there were claims that several candidates elected in the 1992 Maharashtra assembly polls had appealed to voters on religious grounds.
Similar cases were also brought before the Supreme Court in 1996. However, that Bench decided to refer the case to a larger Bench. The five-judge Bench set up in 2014, in turn referred it to a seven-judge Bench.
The Indian law favours polity-religion differentiation. But the government’s additional solicitor general and other lawyers representing several BJP state governments wanted no change in the interpretation.
They argued for the narrower interpretation of the law on three grounds: First, the consequences of being found guilty of corrupt electoral practice are too severe (election could be declared void and also disqualification for six years); second, freedom of expression cannot be curtailed by the law during the campaign, and third, the court should not unsettle the legal position as to the meaning of “his” (“no candidate or his agent can appeal…” in the people’s representation act), arguing that it has been settled for decades that an appeal cannot be made in the name of the “religion of the candidate”.
The majority in the SC Bench did not agree with the “literal interpretation” request of the BJP-ruled states and favoured the “purposive interpretation” of expression “his”.
Justice Lokur held that in the interpretation of law both the text of the law as well as the social context in which the law in question was enacted must be kept in view.
He rightly said that the task of the court is to give effect to the Parliament’s purpose. Judges have to be purposive constructionists and concluded that the pronoun “his” would include “not only candidate but his election agent and even voters, if such an appeal had the consent of the candidate or his agents.”
Thus no candidate can escape from the Bar simply on the ground that the appeal to vote or refrain for voting was not made in the name of his own religion.
With this judgment, there is now an urgent need to overrule the Hindutva judgment of 1995. If that is not done, we would be in a strange situation as no appeal can be made in the name of any other religion except “Hinduism” and “Hindutva”, which the court had held are “ways of life not religion”.
For example, if a Christian candidate in Kerala seeks votes saying the state will be the first Christian state if his party is voted to power, it is a corrupt electoral practice but a similar appeal by the Shiv Sena for Kerala becoming first Hindu state will be fine.
Faizan Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad
The views expressed are personal