If Ambedkar, the Architect of the Indian Constitution, were alive today and stood for elections, it would be illegal for him to appeal to members of a caste citing the caste-based discrimination they are subjected to. Similarly, it would be illegal for any candidate in an election in Bengaluru to appeal to people from the Northeast who live in that city citing the ethnic harassment they experience. It would be equally impermissible for any candidate in Dhulagarh in West Bengal to appeal to Hindus citing the hooliganism and discrimination they suffer for being Hindus. It would also be unlawful for any candidate in Delhi to promise to Sikh voters that, if elected, she would work towards bringing the culprits behind the 1984 anti-Sikh riots to book.

This is, in pith and substance, the majority view of the seven-Judge Bench of the Hon’ble Supreme Court of India which welcomed the New Year with the so-called second “Hindutva judgement”. “So-called” because some sections of the mainstream media have mischievously christened it so when, in fact, there is no discussion on or revisitation by the Court of the contours of Hindutva. These news reports also incorrectly referred to the 1995 decision of the Court in Manohar Joshi vs Nitin Bhaurao Patil & Anr as the first Hindutva judgement, when the distinction between Hinduism and Hindutva was struck by the Supremes in a related petition, namely Dr. Ramesh Yeshwant Prabhoo vs Shri Prabhakar Kashinath Kunte & Ors, which too was decided in 1995.

On a different note, each of these judgements, along with the decision of the Constitution Bench in Sastri Yagnapurushadji and Others vs. Muldas Bhudardas Vaishya and Another, merits mandatory reading if one is interested in understanding the Supreme Court’s take on Hinduism, Hindus and Hindutva within the framework of the Constitution.

Coming back to the latest decision, the limited issue which the Supreme Court was called upon to decide was this- Does the language of Section 123(3) of the Representation of the People Act, 1951 allow for an expansive reading of corrupt electoral practices proscribed by the provision so as to prohibit any and all reference to religion as part of an election campaign?

To understand the issue better, it is imperative to take a look at sub-Sections (3) and (3A) of Section 123, both of which are relevant to the discussion. Here they are:

123. Corrupt practices—The following shall be deemed to be corrupt practices for the purposes of this Act:

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(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.

(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

In a nutshell, the discussion in the judgement revolved around the interpretation of the underscored pronoun “his” in sub-section (3). The minority view in the judgement was that “his” had to be given its due based on the plain and express language of the provision. In practice, this would mean that the bar under the provision is limited to an appeal made to voters in an election by a candidate (including his agent or any other person making the appeal with the candidate’s or the agent’s consent) on the ground of his (candidate’s) own religion or the religion of a rival candidate.

However, the majority view was that, apart from the candidate’s own religion or that of the rival candidate, “his” includes a reference to (a) the religion of the candidate’s agent or (b) the religion of any other person who makes a religious appeal with the consent of the candidate or the candidate’s agent or (c) the religion of the voters to whom the appeal was being made. In arriving at this view, four judges of the Supreme Court resorted to what is known as “purposive construction” of the language of sub-Section (3) by relying upon (i) the origins of the provision, (ii) the history of its amendments including the amendment in 1961, (iii) the contemporaneous amendment to Section 153A of the Indian Penal Code, and (iv) resorting to what the majority has called “social context adjudication”.

As observed at the outset, thanks to this view, henceforth there can be no references to religion, race, caste, community or language as part of electoral discourse in India. Frankly, one is astounded both by the reasoning and the conclusion because they go well beyond what was intended to be curbed by the Parliament through the amendment effected to Section 123 in 1961. This is because, in the process of purposively interpreting the 1961 amendment, the majority view has misconstrued the very purpose it claims to further.

The limited Legislative intention behind the amendment in 1961 was only to curb even solitary attempts by candidates in an election to seek votes by appealing to their religion, caste, community or language, or by targeting the religion, caste, community or language of a rival candidate. The goal was to prevent anyone from being elected or from being boycotted in an election on grounds of her or his religious identity- no one should be elected or boycotted because she or he is a Hindu or a Muslim. A Hindu should be able to get elected from a predominantly Muslim constituency or vice-versa.

However, it was never nor could have been the intention of the Parliament to pixelate religion, caste, community or language altogether from electoral discourse because such an amendment would have been vulnerable to a constitutional challenge. Here’s why- according to the interpretation of the provision prior to the current decision of the Supreme Court, had Ambedkar been alive and had he contested elections post the 1961 amendment to Section 123, he could not have legally appealed to voters citing his caste, but he could have legitimately and constitutionally appealed to voters of a certain caste citing the caste-based discrimination they suffered (and still suffer). Not just that, Section 123(3A) read with Section 153A of the IPC would have acted as a safeguard by preventing Ambedkar from using a caste-based appeal under sub-Section (3) to sow seeds of hatred and enmity between people of different castes. Simply put, under the previous interpretation, while an appeal based on the caste of the voters was not barred, using that as a façade to promote enmity between castes was forbidden. This is an illustration of the balanced interplay between sub-Sections (3) and (3A) of Section 123, and Section 153A of the IPC, which was in vogue prior to the judgement under discussion. This balanced approach has now been rendered illegal by the majority view of the Supreme Court.

The long and short of it is that the majority view stands in the way of political empowerment of oppressed classes and communities. What is also anomalous and impractical about the reasoning is that it treats as permissible any reference to religion, caste, community or language in a non-electoral political context, but somehow expects an election campaign, the very festival of celebration of democracy, to be insulated and hermetically sealed from all such references. This approach is at loggerheads with constitutional secularism, which the majority view claims to be religiously faithful to, since the Constitution itself is not indifferent or hostile or oblivious to religion, caste, language or community and the role they play in social mobilisation. This nuance has been captured brilliantly in the minority view authored on behalf of three Judges of the Court by Justice Chandrachud. Here are a few excerpts:

“Underlying the surface of this case, are profound questions about the course of democracy in our country and the role of religion, race, caste, community and language in political discourse. Each of these traits or characteristics defines identity within the conception of nationhood and citizenship. Quibbles over the meaning of a word apart, the interpretation that will be adopted by the court will define the boundaries between electoral politics on the one hand and individual or collective features grounded in religion, race, caste, community and language on the other….

The expression ‘his’ means belonging to or associated with a person previously mentioned. The expression “his” used in conjunction with religion, race, caste, community or language is in reference to the religion, race, caste, community or language of the candidate (in whose favour the appeal to cast a vote is made) or that of a rival candidate (when an appeal is made to refrain from voting for another). It is impossible to construe sub-section (3) as referring to the religion, race, caste, community or language of the voter. The provision, it is significant, adverts to “a candidate” or “his agent”, or “by any other person with the consent of a candidate or his election agent”. This is a reference to the person making the appeal….

…What then, is the rationale for Section 123(3) not to advert to the religion, caste, community or language of the voter as a corrupt practice? Our Constitution recognizes the broad diversity of India and, as a political document, seeks to foster a sense of inclusion. It seeks to wield a nation where its citizens practice different religions, speak varieties of languages, belong to various castes and are of different communities into the concept of one nationhood. Yet, the Constitution, in doing so, recognizes the position of religion, caste, language and gender in the social life of the nation. Individual histories both of citizens and collective groups in our society are associated through the ages with histories of discrimination and injustice on the basis of these defining characteristics. In numerous provisions, the Constitution has sought to preserve a delicate balance between individual liberty and the need to remedy these histories of injustice founded upon immutable characteristics such as of religion, race, caste and language. The integrity of the nation is based on a sense of common citizenship. While establishing that notion, the Constitution is not oblivious of history or to the real injustices which have been perpetrated against large segments of the population on grounds of religion, race, caste and language. The Indian state has no religion nor does the Constitution recognize any religion as a religion of the state. India is not a theocratic state but a secular nation in which there is a respect for and acceptance of the equality between religions. Yet, the Constitution does not display an indifference to issues of religion, caste or language. On the contrary, they are crucial to maintaining a stable balance in the governance of the nation.

…These, among other, provisions of the Constitution demonstrate that there is no wall of separation between the state on the one hand and religion, caste, language, race or community on the other. The Constitution is not oblivious to the history of discrimination against and the deprivation inflicted upon large segments of the population based on religion, caste and language. Religion, caste and language are as much a symbol of social discrimination imposed on large segments of our society on the basis of immutable characteristics as they are of a social mobilisation to answer centuries of injustice. They are part of the central theme of the Constitution to produce a just social order. 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.”

This author couldn’t have captured the quoted sentiments better.

From a legal standpoint as well, apart from having gone beyond the Legislature’s intent in amending Section 123, it is this author’s humble view that the very application of “purposive construction” was without basis. Here are the rules regarding application of purposive construction to a statutory provision, which demonstrate the problems with the reasoning of the majority:

Purposive construction, as a rule, is warranted only if a plain and literal reading of the provision (a) gives rise to multiple reasonable interpretations or (b) leads to patent absurdity. Simply put, if there are more than one plausible and reasonable interpretations of a provision or the construction leads to absurdity, reference to the context in which the provision was brought about becomes necessary, particularly if the language is the product of an amendment(s). However, merely because a provision has been subjected to multiple amendments, it wouldn’t be permissible for the Court to invoke purposive construction if the language is otherwise clear and is not at loggerheads with the rest of the statute. Critically, if a provision is meant to curb mischief or forbid conduct which it deems corrupt, and also has the consequence of disqualifying an individual from taking part in the electoral process altogether, the provision is not meant to be interpreted liberally and expansively no matter how noble intention of the Court may be.

Applying these principles to the language of Section 123(3), it becomes evident that the majority view comes at the expense of the express content of the provision, besides turning the rules of grammar and syntax relating to the use of pronouns on their heads. It is as plain as day that “his” in Section 123(3) refers only to the candidate or his rival, and not to the voter because there is no reference to the voter which would have justified his inclusion in “his”. And yet, the majority resorted to purposive construction when the provision did not call for its application in the first place, besides getting the purpose wrong.

In light of this, one cannot help but wonder if the majority view is the result of putting the cart before the horse. It almost seems as though the provision was “purposively” interpreted to further a predetermined view. In doing so, the majority view of the Court has blurred the necessary lines between what the law is as enacted by the Parliament and what it ought to be according to the Court. This, as one understands it, is not the role of the Judiciary, especially the highest Court of the land.

By reading into the language of the provision more than it warrants, by ascribing more to the will of the Legislature than history permits and by justifying it all in the name of “social context adjudication”, the majority view gives the impression that the Court sees itself as the sole and final arbiter of what is good for a secular pluralist democracy and what constitutes one. Clearly, separation of powers, which is equally an integral and critical part of the basic structure of the Constitution, is the casualty in the process and does not bode well for the health of the very democracy the majority view professes to protect.

One sincerely hopes that this is a passing phase because the Supreme Court commands the respect of the people only by being the first to respect the Constitutional bounds it is required and expected to operate within.